Preamble

The House met at half-past Two o' clock

PRAYERS

[MR. SPEAKER in the Chair]

NEW WRIT

For Glasgow, Hillhead, in the room of the hon. Sir Thomas Galloway Dunlop Galbraith, KBE., deceased.—[Mr. Jopling.]

Oral Answers to Questions — FOREIGN AND COMMONWEALTH AFFAIRS

Eritrea

Mr. Russell Johnston: asked the Lord Privy Seal whether he will make a statement on the situation in Eritrea.

The Minister of State, Foreign and Commonwealth Office (Mr. Richard Luce): Her Majesty's Government are concerned at reports of renewed fighting in Eritrea. The Ethiopian Government are aware of our belief that regional disputes should be settled not by violence but by conciliation and negotiation.

Mr. Johnston: Does the Minister have any evidence that nerve gas has been used? Can he confirm that Russia supplied nerve gas in 1980? Can he say anything about the substantial number of refugees in Eritrea on the Sudanese border?

Mr. Luce: We noted that in a recent BBC external services broadcast the Ethiopian ambassador in London denied the use of any nerve gas, but if any evidence of its use becomes available we shall regard the matter very seriously.
As the hon. Gentleman knows, we give assistance to refugees in Somalia and in the Sudan.

Mr. Wilkinson: I note what my hon. Friend said about conciliation and negotiation being the basis of the settlement, but is self-determination for the people of Eritrea a concept that Her Majesty's Government will support?

Mr. Luce: Since 1962 Eritrea has been regarded by the international community as an integral part of Ethopia. We have not changed our position on that aspect.

Mr. George Robertson: The House will be comforted by the Government's concern about the increasing rumours on the use of nerve gas. May we be assured that the Government are taking steps urgently to consider this matter? The anxiety, which exists in much wider areas than the British community, needs to be investigated in great depth. Will the Government take steps to bring the matter to the attention of those who may be responsible?

Mr. Luce: Yes. We have told the British ambassador in Ethiopia of the public anxiety about this issue and asked all those who have expressed concern to give their evidence, which we shall consider seriously.

Israel

Mr. Latham: asked the Lord Privy Seal whether, during the forthcoming visit to Israel, the Secretary of State will make it a priority to seek to bring about a substantial and continuing improvement in relations between Her Majesty's Government and the Government and people of the State of Israel; and if he will make a statement.

The Minister of State, Foreign and Commonwealth Office (Mr. Douglas Hurd): We certainly aim to maintain excellent relations with Israel. My right hon. and noble Friend hopes that his visit to Israel will help.

Mr. Latham: As relations are currently poor and the fault is not all on one side, will my right hon. Friend confirm that when the Secretary of State goes to Israel it will be not only to put over Western perceptions and policies, but to listen to the views of the people and Government of Israel?

Mr. Hurd: Yes, Sir. There are genuine differences of view between the British and Israeli Governments. However, there have been many unnecessary misunderstandings, which we are beginning to clear away. I certainly accept that that means consulting both sides.

Mr. David Watkins: When the Secretary of State visits Israel, will he make it clear to the Israeli Government that they can do a great deal to improve relations with Britain by ending what appears to be their on-going policy of illegal annexation, colonisation and, indeed, armed attacks against other countries?

Mr. Hurd: We have made clear at the United Nations and elsewhere our rejection of the Israeli action over East Jerusalem and, more recently the Golan Heights. Therefore, there is no misunderstanding about that.

Mr. Lawrence: Is my right hon. Friend aware that the best single approach is for the Foreign Secretary to give his complete encouragement and support for the furtherance of the autonomy talks and negotiations that are a continuation of the Camp David settlement, which has the agreement of both Egypt and the United States?

Mr. Hurd: I wish those talks well, but my hon. and learned Friend will have noticed the point repeatedly made by the Egyptian President in public that there is a stage beyond which one cannot discuss the future of Palestinian lands without the Palestinians.

Dr. M. S. Miller: There could be an exaggeration on the part of some people in respect of Israel's desire for security, but does the right hon. Gentleman accept that the security of the Israeli people is paramount in their minds, regardless of the fact that we may feel that they are pursuing it in a way with which we do not agree? Will his right hon. and noble Friend the Foreign Secretary make clear to the Israeli leaders his views and those of Her Majesty's Government and thereby allay Israel's fears about security in future?

Mr. Hurd: Security is paramount in the minds of the Israelis, just as Palestinian self-determination is paramount in the minds of the Arabs. We must find a way to reconcile those two objectives.

Syria

Mr. James White: asked the Lord Privy Seal if the Secretary of State, during his forthcoming visit to Syria, will urge the Syrian Government to enter into direct peace negotiations with Israel.

Mr. Hurd: In the search for a peace settlement in the Middle East we take every opportunity of urging all parties in the region to indicate their willingness to enter into negotiations with each other. My right hon. and noble Friend's forthcoming visit to Syria will provide a further opportunity to emphasise the need for such negotiations.

Mr. White: When the Foreign Secretary visits Syria, will he attempt to clarify whether President Assad said that he would never recognise Israel? If so, will he do everything that he can to make sure that that is changed?

Mr. Hurd: The hon. Gentleman will know that Syria accepted resolution 338 of the Security Council, which embodied a reaffirmed resolution 242. Therefore, the position of the Syrian Government in that respect is clear.

Mr. Walters: Will my right hon. Friend confirm to the Syrian Government that the so-called annexation of parts of Southern Syria and the Golan Heights is regarded as totally unacceptable?

Mr. Hurd: We have made that clear. As far as we are concerned, internal actions and measures taken by the Israeli Government have no international effect and are void.

Mr. Roy Hughes: Has the Minister considered the repeated assertion that Israel requires secure borders? Does he not feel that that should also apply to other countries in the region? Are they not also entitled to secure borders?

Mr. Hurd: Yes, Sir.

Mr. Maxwell-Hyslop: During the visit, will my right hon. and noble Friend draw the attention of the Syrian Government to the fact that they have not had an ambassador here for far too long and that it is necessary to have an ambassador at the Court of St. James if Syria's case is to be expressed consistently and forcefully in the media?

Mr. Hurd: I am grateful to my hon. Friend for his remarks. There may be good news on that front before long.

Poland

Mr. Douglas: asked the Lord Privy Seal if he will make a statement on the most recent discussions between his Department and the Polish Government on the issue of human rights.

The Lord Privy Seal (Mr. Humphrey Atkins): Her Majesty's Government have made it very clear to the Polish authorities that we deplore the massive violation of human and civil rights in Poland. We have called on the Polish Government to lift martial law, release those detained without trial and resume a dialogue with the Church and Solidarity as soon as possible.

Mr. Douglas: I welcome that reply. Has the Minister had talks with and received the views of the International Committee of the Red Cross on the number of people in internment? Will he indicate the Government's anxiety over the fate of Mr. Lech Walesa? His continued incarceration should be deplored by all who want to see human rights extolled in this country and elsewhere.

Mr. Atkins: We are in close touch with the International Committee of the Red Cross because of the handling of the humanitarian food aid that we and other countries are sending to Poland. Of course we deplore the detention of Lech Walesa without trial, just as we deplore the detention of anyone else. He is still detained, but he was recently visited by a Polish priest and appeared to be in good health.

Mr. Brocklebank-Fowler: Has the right hon. Gentleman noticed reports in today's papers of a speech by his right hon. Friend the Member for Sidcup (Mr. Heath) expressing criticism of sanctions against Poland? Does he agree with the right hon. Gentleman's assertion that the West can influence the situation in Poland only by pursuing a policy of detente in the long term?

Mr. Atkins: I have seen newspaper reports of what my right hon. Friend the Member for Sidcup (Mr. Heath) apparently said in the United States yesterday, but I am too old a hand to rely entirely on newspaper reports.

Sir Frederic Bennett: In his earlier reply my right hon. Friend mentioned the importance of lifting martial law. Does he agree that we must be careful not to fall into the trap of thinking that the situation will be ameliorated by the lifting of martial law, which would not necessarily lead to the release of political prisoners or the return of human rights? There is no martial law in the Soviet Union and there are certainly no human rights there.

Mr. Atkins: I agree with my hon. Friend, who may have noticed the communiqué, issued following discussions in Russia yesterday between President Brezhnev and General Jaruzelski, to the effect that any attempts to change the socio-political system further will be cut short in a most resolute manner. That applies not just to martial law. It is clear from that communiqué that there is no change of heart so far on the part of the Polish authorities.

Mr. Winnick: The Labour Party sympathies entirely with the Polish working people against the junta. When will the Prime Minister speak out clearly and sharply over the evil repression in South Africa and in El Salvador—

Mr. Speaker: Order. There are questions about El Salvador on the Order Paper.

Mr. Winnick: With respect, Mr. Speaker—

Mr. Speaker: Order. This question is about Poland.

Mr. Skinner: Yes, but there is a comparison.

Mr. Winnick: On a point of order, Mr. Speaker.

Mr. Speaker: I will take the hon. Gentleman's point of order after Question Time. [Interruption.] Order. I am not entering into an argument with the hon. Gentleman.

Sir Patrick Wall: asked the Lord Privy Seal whether he is satisfied with the steps the fifteen North Atlantic Treaty Organisation nations have taken to formulate an agreed policy of response to any further unfavourable developments in Poland.

Mr. Humphrey Atkins: The response of Her Majesty's Government and our North Atlantic Treaty Organisation allies to the situation in Poland was set out in the ministerial declaration of 11 January. That declaration also outlined measures which might be taken if the situation in Poland showed no improvement. A number of such measures have now been taken. Should the situation in Poland deteriorate further—we all hope it will not—NATO will certainly respond as indicated.

Sir Patrick Wall: In view of the lack of allied co-operation over Afghanistan and Soviet sanctions—

Hon. Members: Order.

Mr. Speaker: Order. I am grateful for that assistance. The question is confined to Poland.

Sir Patrick Wall: In view of the lack of allied co-operation in the former cases, will my right hon. Friend assure the House that, should the Soviet Union take over Poland, allied co-operation has already been agreed and will be immediate?

Mr. Atkins: We have made it clear in NATO that any move by the Soviet Union to interfere directly in the affairs of Poland will be met immediately by the measures and rebuffs that we have described in the statement to which I referred.

Mr. Frank Allaun: Does the right hon. Gentleman agree that, whatever we may feel about martial law in Poland, that is no reason for breaking off or discouraging East-West peace talks? What good will it do the Polish, British or any other people if we continue the arms race, which can only have the same result as all past arms races?

Mr. Atkins: The hon. Gentleman will surely have noticed that the discussions in general between the United States and the Soviet Union about the reduction of future theatre nuclear weapons are still going on. Furthermore, the review conference in Madrid relating to the Helsinki Final Act is also continuing.

Mr. John Townend: If the situation in Poland deteriorates, will one of the options being considered by the Government and our NATO Allies be that the sporting relationships between the West and the Communist bloc should be put on the same basis as those with South Africa?

Mr. Atkins: There are no sporting relationships between ourselves and the Soviet Union at the moment. [HON. MEMBERS: "Of course there are."] There are no events scheduled between ourselves and the Soviet Union at the moment.

Mr. Nicholas Winterton: Where is Aston Villa now?

Mr. Atkins: I refer the House to the statement issued on 11 January to which I have referred.

Mr. Renton: asked the Lord Privy Seal whether he considers that the joint European Economic Community initiative with regard to Poland is making any progress.

Mr. Humphrey Atkins: The position of the Ten remains as set out in the declaration of Foreign Ministers on 4 January, a copy of which was placed in the Library. The Community has discontinued food sales at special prices to Poland, and funds for that purpose have been diverted to humanitarian aid. European Community

Foreign Ministers agreed on 23 February to allocate a further £4·5 million for this aid. There have not so far been the changes in Polish policies that we would wish to see.

Mr. Renton: Is it not a matter of deep regret that, despite the horror felt in the whole of the Western world about martial law being imposed in Poland, none of the measures so far taken by the EEC has had any effect whatever? Is it not clear that the military regime in Poland, supported by Russia, will in the end be influenced only by a totoal embargo on grain exports to the Eastern bloc?

Mr. Atkins: The answer to the first part of my hon. Friend's question is "Yes". On the second part, I believe that the restrictions on credit upon which the Community has embarked in relation to Poland are having an effect.

Mr. Newens: Will the Lord Privy Seal make it clear that many of us who have been deeply concerned about human rights in other parts of the world are equally anxious about the situation in Poland? Is he aware that we are most concerned that he should make it clear everywhere that the Opposition are anxious that immediate steps are taken to release political prisoners and to provide proper freedom for the Polish people?

Mr. Atkins: I am delighted to have the hon. Gentleman's support.

Mr. Heffer: Is the Lord Privy Seal aware that some of us believe that the proposed sanctions are entirely cosmetic? Does he agree that sanctions, such as 2 per cent. of imports worth £140 million relating to luxury goods, are not the way to proceed? Would it not be better for the Ten to enter into discussions with the Polish Government about the release of prisoners and the removal of martial law than to have a pretence of action which adds up to nothing?

Mr. Atkins: As I said earlier, we are in touch with representatives of the Polish Government. We have made precisely the points that the hon. Gentleman has made, but so far to no effect whatever.

Miss Ana Margarita Gasteazoro

Mr. Peter Bottomley: asked the Lord Privy Seal if he will publish the text of the reply received by the Foreign Office from the Salvadorean Government to their inquiries in 1981 about Miss Ana Margarita Gasteazoro's imprisonment.

Mr. Luce: It is not our policy to publish texts, but I can say to my hon. Friend that the El Salvador Government have told us that this is an internal matter and they cannot accept requests for information from the British Government.

Mr. Bottomley: I remind my hon. Friend that Miss Ana Margarita Gasteazoro was helpful to the parliamentary human rights group's visit in 1978. Does he agree that the detention for 10 months of an active democratic politician is not the best sign that the elections in El Salvador will solve that country's problems?

Mr. Luce: As I have already implied, we have made known the concern of hon. Members about this lady. Clearly, if people are detained in any part of the world they should be charged or released as soon as possible thereafter.

Mr. Newens: In those circumstances, how can fair elections possibly take place in El Salvador? Will the


Minister reconsider the decision that he defended yesterday? If this lady, who is a member of the Social Democratic Party of El Salvador, is kept in gaol for a year without trial, what possibility is there for people on the Left to campaign adequately in elections?

Mr. Luce: I strongly favour the Government's policy to send two observers to the elections. That is a neutral act. They will see for themselves what the electoral process is like, form an independent opinion and publish their report.

Mr. Whitney: Does my hon. Friend share my dismay and agree with me that, at a time when the Roman Catholic Church, the peasants' trade union and many other organisations in El Salvador are pleading with the world to support the elections, and when the neighbouring democratic States of Costa Rica and Honduras also support the elections, it is depressing in the extreme that Socialist International, and therefore the Labour Party, allied with the Liberal Party and the Social Democratic Party, should be hostile to democratic elections? [HON. MEMBERS: "So is the EEC."] Does he further agree that human rights—[Interruption.]

Mr. Speaker: Order. The hon. Gentleman is about to complete his sentence.

Mr. Whitney: Does he further agree that the human rights of the lady in question and others in El Salvador will be protected if a constitutional Government can be constructed on the basis of democratic elections, which are rejected by all three Opposition parties in the House?

Mr. Luce: I agree with my hon. Friend that it is far more constructive to encourage the democratic process, and we believe that it is right to do so. We all note that the Roman Catholic bishops in El Salvador and the Pope himself at the weekend expressed the belief that elections should be held.

Mr. McNamara: Oh, no, he did not.

Mr. Healey: I doubt whether the Minister listened very carefully to the disgraceful words of his hon. Friend the Member for Wycombe (Mr. Whitney). Does he agree that the democratic Government of Canada, together with all the democratic Governments of Western Europe except Britain, have taken exactly the same view as Her Majesty's Opposition—namely, that there cannot be democratic elections in El Salvador while the whole country is controlled by a military junta which is committing the most appalling atrocities against the people?

Mr. Luce: This is getting rather repetitive. Yesterday we told the right hon. Gentleman that the Foreign Minister of Canada said that he believes that it is right to hold elections. His point about observers was that he would have preferred them to be part of an international team. The question is what is right for the British Government to do. We believe that the most constructive course is to send two representatives to El Salvador to observe the electoral process rather than sit here as armchair critics.

Madrid Conference

Mr. Michael McNair-Wilson: asked the Lord Privy Seal if he will make a statement about progress at the Madrid conference.

Mr. Hurd: The review meeting reconvened at Madrid on 9 February. Since then many Western delegations have

spoken about the situation in Poland and have forcefully drawn attention to violations of the Helsinki Final Act by the Polish and Soviet authorities. My right hon. and noble Friend addressed the meeting in this sense on 12 February. There has been virtually no discussion since Christmas of other subjects.

Mr. McNair-Wilson: In my right hon. Friend's view, has the Madrid conference produced any positive results in easing tension between East and West or in creating new confidence-building measures?

Mr. Hurd: The tragedy is that, before martial law was imposed in Poland, we had made some progress towards agreement on a European disarmament conference and confidence-building measures, but it is difficult now in Madrid to discuss new agreements of that kind without first discussing how existing agreements have been flouted by Poland and the Soviet Union.

El Salvador

Mr. Haynes: asked the Lord Privy Seal what information is available to Her Majesty's Government about the incidence of human rights violations in El Salvador in recent weeks.

Mr. Luce: I have seen reports that civilians were killed during security force operations in the province of Morazan in December 1981 and in the suburbs of San Salvador earlier this year. There have also been reports of the killing of civilians by guerrillas. We have no independent means of verifying any of these reports.

Mr. Haynes: Is the Minister aware that many people in this country are deeply concerned about Government action on human rights? Is he also aware that the Government's record is certainly not Persil-white? When will he and the Government come out into the open from behind Reagan's cloak and do something about the problem?

Mr. Luce: It seems strange that the hon. Gentleman should pose this question in such a hysterical way when if he had been present during the debate last night he could have made a contribution. [Interruption.] I do not recall his presence in the House.
During that debate—and clearly the hon. Gentleman did not listen—the Government condemned violence, from whatever source. We supported a United Nations resolution that a special rapporteur should be appointed to examine the violation of human rights in El Salvador. The hon. Gentleman does the House no good by making such fatuous allegations.

Mr. Haynes: On a point of order, Mr. Speaker. [Interruption.]

Mr. Speaker: I shall allow this point of order, because there was a personal reference to the hon. Member for Ashfield (Mr. Haynes).

Mr. Haynes: I ask for your protection in this matter, Mr. Speaker. The public schoolboys on the Conservative Benches think that this is a joke. I was in the Chamber during the debate last night. What is more, I did a duty as Whip on the Opposition Front Bench. Mr. Speaker, I need your protection from that scurrilous attack. The Minister ought to be ashamed of himself.

Mr. Speaker: Order. If it will help to restore the peace—

Mr. Roy Hughes: Withdraw.

Mr. Speaker: Order. I saw the hon. Gentleman sitting there.

Mr. Winnick: Withdraw.

Mr. Speaker: Order. Perhaps the Minister will withdraw his remark. I saw the hon. Member for Ashfield (Mr. Haynes) last night.

Mr. Luce: Further to that point of order, Mr. Speaker. What I was saying was that I did not hear the hon. Gentleman speak last night. If he was unable to do so for other reasons, I withdraw my allegation.

Mr. Stokes: Does my hon. Friend share my view that there is nothing that the House likes more than discussing matters over which it has little or no control? Does he agree that, much as we may dislike what is happening in El Salvador, there is very little that we can do about it?

Mr. Luce: There is widespread anxiety about the situation in El Salvador. I agree that certain hon. Members seem to think that they have every right to interfere in the internal affairs of El Salvador. It is important to have a balanced judgment on this occasion.

Mr. Winnick: What about Poland?

Mr. Clinton Davis: Last night the Lord Privy Seal made great play of the fact that the Government have made many appeals to the El Salvador Government, and others, to bring offenders responsible for breaching human rights and causing deaths to trial. What effect have the Government's pleas had on the El Salvador Government, who, with their sponsored death squads, were responsible for thousands of deaths in 1981 alone?

Mr. Luce: Last night we had a full debate in which the whole House seemed to agree that there were two sources of violence—the Right wing, and some military elements, and the Left-wing guerrillas. It is sensible for the House to deplore violence from any source.

Falkland Islands

Mr. McNamara: asked the Lord Privy Seal if he will make a statement on his discussions with the Government of Argentina on the future of the Falkland Islands.

Mr. Luce: I met the Argentine Under-Secretary of State for Foreign Affairs for discussions on the Falkland Islands question on 26 and 27 February in New York. While we both agreed on the need to resolve the dispute, and discussed future procedures, I made it clear that we had no doubts about British sovereignty, and that no solution could be agreed that was not acceptable to the islanders and to the House. The text of the communiqué was published in the Official Report of 2 March and has been placed in the Library.

Mr. McNamara: We have all read the bland communiqué and we have then read the reports from Argentina in today's press. Can the hon. Gentleman give an undertaking that under no circumstances will Her Majesty's Government countenance the transfer of sovereignty to a country that denies human rights, imprisons trade unionists, denies free elections and in every way goes against all the traditions held dear by the people of the Falkland Islands?

Mr. Luce: I can tell the hon. Gentleman that, without any shadow of a doubt, there will be no contemplation of any transfer of sovereignty without consulting the wishes of the islanders, or without the consent of the House. The statement reported to have been issued by the Argentine Government yesterday is not helpful to the process that we all wish to see that will resolve this dispute.

Mr. Amery: I congratulate my hon. Friend on the line that he took in talks with the Argentine Government. Has his attention been drawn to the somewhat aggressive statement in the Argentine press yesterday? Will he assure us that all necessary steps are in hand to ensure the protection of the islands against unexpected attack?

Mr. Luce: We have no doubts about our sovereignty over the Falkland Islands and no doubt about our duties to the islanders. The statement to which my right hon. Friend referred causes me and my right hon. and noble Friend deep concern, especially as the discussions last week were held in a friendly and cordial atmosphere. Yet, they have been followed by a statement that is most unhelpful. It causes deep anxiety and is not helpful to the process of finding a solution to the problem.

Mr. Russell Johnston: While the Minister's words are welcome, they would be more persuasive if the Government were willing to embark on an economic aid programme for the Falkland Islands. Can the hon. Gentleman say anything about that?

Mr. Luce: My right hon. Friend the Minister for Overseas Development is here and is answerable for aid problems. I think that he would want me to stress that the per capita assistance for the Falkland Islands is substantial and that the Government propose to continue in that way.

Overseas Students

Sir Paul Bryan: asked the Lord Privy Seal to what extent the policies of Her Majesty's Government on overseas students have affected relations with other countries.

Mr. Luce: It is the case that there has been a reduction in the number of overseas students coming here and that a number of Governments have expressed their concern about that.

Sir Paul Bryan: If the charging of these fees for overseas students has affected foreign relations, trade and educational arrangments here, is it not apparent that the time has now come for a co-ordinated policy to be produced by all the Government Departments concerned, with the Foreign Office firmly in the lead?

Mr. Luce: This is an issue that concerns not just one Department but a great number of Departments. It is important for the future of our relations with so many countries that we should have as many students here as possible. As the House knows, it was necessary to take a decision to reduce public expenditure, and we had to bear in mind the economic constraints within which we were operating. I agree with my hon. Friend that the question is important, but we should await the report of the Overseas Students Trust, which is due to be published shortly. The Government shall be considering its findings carefully.

Mr. Moyle: Is the Minister aware that the island of Cyprus does not have a university because when it was


given independence the Government of the day—a Conservative Government—said that it would always be able to send its students to universities in this country? Now all classes and shades of opinion in Cyprus are viewing with alarm and dismay the fact that they will be unable to send other than a small group of wealthy students, and that the great bulk of students will go to America or Bulgaria? At the very minimum, will the hon. Gentleman ensure that special arrangements are made for Cyprus as a member of the Commonwealth, and in view of the promises made?

Mr. Luce: The matter does not concern only Cyprus. When we consider the report, it is important to take into account the nature of our relationship with many of our Commonwealth friends. It is also important to stress—and my right hon. Friend the Lord Privy Seal would wish me to do so—that we are spending substantial public funds on the overseas development assistance programme to support many students. About £42 million is to be spent in 1982–83 on maintaining about 14,000 students and trainees.

Mr. Durant: Is my hon. Friend aware that the good will and training that overseas students gather in Britain can be of great advantage to us in the long term? For example, is my hon. Friend aware that as students educated here become senior executives in their own countries they will orient themselves towards Britain? The Government should consider that seriously.

Mr. Luce: I agree about the importance of providing training facilities. That is why we attach importance to studying carefully the Overseas Students Trust report due to be published shortly. We shall look at it as constructively as possible, bearing in mind economic restraints.

Disarmament

Mr. Chapman: asked the Lord Privy Seal if he will make a statement on the progress of preparations for the United Nations special session on disarmament beginning on 7 June 1982.

Mr. Hurd: The preparatory committee for the special session, of which we are a member, has drawn up the agenda for it. The preparatory committee's final meeting will be held in April and May, when it will conclude its procedural business and possibly begin discussion of substantive issues.

Mr. Chapman: I recognise that there is an international agreement of sorts to ban the use of chemical weapons, but does my right hon. Friend agree that that ban would be much more effective if there were also an agreement to ban the manufacturing and the stockpiling of such offensive weapons? Will Her Majesty's Government use their good influence to promote that as an objective at the forthcoming special session?

Mr. Hurd: My hon. Friend is right. There is a great deal of worry about chemical weapons. That is why Her Majesty's Government put forward the criterion for verification in the Committee on Disarmament on 18 February. Everyone who looks at the matter realises that satisfactory verification measures are the key to stopping the manufacture and stockpiling of chemical weapons. We have taken an initiative that we hope will be useful.

Mr. George Robertson: Is the Minister aware of the deep concern among—indeed the affront to—British people that a meeting of NATO Ministers has been called to coincide with the start of the special session on disarmament? Given the great public interest that exists throughout the world in the possibilities of success of the special session of disarmament, will Her Majesty's Government use all the influence in their power to get the NATO Heads of State meeting rescheduled to a more appropriate time?

Mr. Hurd: That is a weak point. The NATO summit will last for two days, and the special session for more than a month. I should be surprised if the NATO summit did not address itself to arms control in the same way as NATO Heads of State have done in the past.

Oral Answers to Questions — EUROPEAN COMMUNITY

Inter-Community Relationships

Mr. Squire: asked the Lord Privy Seal if he is satisfied with the state of relations between the United Kingdom and other member States of the European Economic Community.

Mr. Humphrey Atkins: Yes, Sir.

Mr. Squire: Does my right hon. Friend accept that the admittedly small chance of there being a future Labour Government who would withdraw from Europe puts a cloud over relations between ourselves and our European colleagues? Has my right hon. Friend read a recent article in the New Statesman by Ann Clwyd, the Labour European Member, which pointed out clearly that it is not enough for Labour Party spokesmen to talk about their internationalism, but that they must prove it in practice?

Mr. Atkins: Yes, Sir. The possibility of a future Labour Government seeking to withdraw Britain from the Community causes anxiety to our colleagues. However, I am happy to be able to reassure my hon. Friend that the likelihood of that is remote.

Mrs. Shirley Williams: Is the Minister aware that any withdrawal from the Community will have a devastating effect on employment? Does he agree that the likelihood of achieving a similar favourable trading arrangement is an illusion of the Labour Party?

Mr. Cryer: Rubbish.

Mrs. Williams: Can the Lord Privy Seal assure the House that the Government will reconsider the present doctrine of additionality under which funds voted for the development of our inner cities and Northern Ireland are simply absorbed by the Treasury and do not go to the benefit of the cities for which they are voted?

Mr. Atkins: The second part of the right hon. Lady's question is more a matter for the Chancellor of the Exchequer than for me. Surprisingly, I agree with her on the first part of her question.

Mr. Heffer: Is the right hon. Gentleman aware that some of us have already heard the stories about the devasting effects on employment, expecially when we were entering the Common Market? Is he aware that we were then told clearly by the advocates of entry to the Common Market that unless we joined millions of people would become unemployed? We entered the Common Market and millions are now unemployed.
Does the Minister agree that the negotiations on the budget proposals are causing a great deal of sourness? Is it not understandable that there will be sourness for as long as such problems face us, for as long as the CAP is not changed and for as long as the Rome Treaty cuts across the interests of the British people? Is it not better to accept the position of the Labour Party—

Mr. Douglas Hogg: Which one?

Mr. Heffer: —and get out of the Common Market than to continue the sourness?

Mr. Atkins: If the hon. Gentleman thinks that we can leave the Common Market without damage, he should consult his colleagues in the TUC.

Reform

Mr. Cryer: asked the Lord Privy Seal if he will list the reforms so far achieved in the Common Market since May 1979; and if he will make a statement.

Mr. Humphrey Atkins: The agreement reached on 30 May 1980, which provided for refunds of Britain's contributions to the Community budget for 1980,1981 and if necessary 1982, was a major achievement for the Government. It also included a commitment to a reexamination of Community policies with a view to a more durable solution. Discussions on this subject in the Community are continuing and we hope that they will soon be brought to a successful conclusion.
The Community has adopted a wide variety of measures in different fields during the period in question. Details can be found in the White Papers on developments in the European Community, which the Government publish at regular intervals.
In addition, a separate memorandum was deposited in the Library of the House on 23 December, outlining the many measures agreed by the Community during the recently concluded British Presidency of the Council of Ministers.

Mr. Cryer: Is it not true that, the right hon. Member for Oswestry (Mr. Biffen) apart, the Government adopt a lickspittle subservience to the EEC? Is it not true that there have been no reforms, that the CAP remains inviolate, and that by virtue of its structure it cannot be changed without a unanimous vote, which is virtually impossible? In 1980, did not Britain have a deficit in manufactures and semi-manufactures of £2½ billion? We are helping to prop up the EEC. Where is the reform in that?

Mr. Atkins: As always, there are none so blind as those who will not see. I direct the hon. Gentleman's attention to my answer referring to the documents that we have deposited in the Library. I suggest that the hon. Gentleman reads them, because then he will see the forward movements, strides and reforms that have taken place in the last few years of our membership of the Community.

Mr. Nicholas Winterton: With every deference to my right hon. Friend, does he agree that one of the reforms that has not been forthcoming is the elimination of the national trading practices of countries such as Italy, France and Belgium, which have worked against the best interests of Britain's manufacturing industries? Does my right hon. Friend agree that, sadly—and against my best wishes and

instincts—Britain has been a soft option and a soft touch since we joined the EEC? When will we stand up for our best national interests?

Mr. Atkins: I always mistrust questions that start with my hon. Friend's opening words. He said that Britain was a soft option in the Community. Our partners do not regard us in that light. I direct my hon. Friend's attention to the many improvements to the way in which the Community works, brought about at our initiative, and the further improvements that we are seeking. Of course, I do not pretend that all the problems have been ironed out. They have not, but that improvements have been made is undeniable.

Mr. Stoddart: Does the right hon. Gentleman agree that the only way in which Britain can get a decent deal—if that is possible—is by ending the common agricultural policy? If that policy were ended, would not France break up the Community?

Mr. Atkins: We are discussing, not ending the CAP, but the changing it. That is one of the things that we are seeking. I remind the hon. Gentleman that the Heads of Government agreed in May 1980 that it should be altered. We are now engaged in that process and I hope that it will be successful.

Mr. Bill Walker: Does my right hon. Friend agree that substantial reforms are required in the interests of all Community members, and that Britain's interests can best be enhanced by pointing out that we are one of the biggest customers for manufactures and agricultural products within the EEC?

Mr. Atkins: I agree with my hon. Friend. Changes are needed in the way in which the Community works. We have been seeking to achieve them. We shall continue to do that and I believe that we shall be successful.

Mr. Leighton: asked the Lord Privy Seal whether any further progress has been made towards reforming the European Economic Community.

Mr. Roy Hughes: asked the Lord Privy Seal if he has had any recent discussions with European Economic Community Ministers concerning future British contributions to the Community budget.

Mr. Humphrey Atkins: Although considerable progress has been made towards agreement on a set of guidelines covering the issues raised by the mandate of 30 May 1980, it has not yet been possible to reach complete agreement, in particular on the four key issues identified by the European Council last November. At the Foreign Affairs Council on 23 February, Ministers agreed to discuss the 30 May mandate at their meeting on 23 March. Before then the President of the Council and the President of the Commission will undertake a series of bilateral contacts with the member States.

Mr. Leighton: How long does the Lord Privy Seal think we can decently continue the charade of pretending that there is a way of reforming the CAP? The right hon. Gentleman said that the mandate was given to the Commission on 30 May, almost a year ago. He assured the House that, based on that, the problems would be solved at the meetings on 23 to 26 November, under the British Presidency. The British Presidency ended in fiasco and Gaston Thorn is telling us that the whole thing is likely to break up.

Mr. Speaker: Order. The hon. Gentleman must ask a question.

Mr. Leighton: Does the right hon. Gentleman not agree that we are rowing over the demand for £1,400 million of British money? Might it not be better to have a looser arrangement, whereby Britain is outside the CAP, does not contribute to the budget and has much friendlier relations with those countries?

Mr. Atkins: No, Sir, it would not. I cannot say precisely how long it will take to solve the problem, but the Government remain determined to solve it in accordance with the agreement reached between the Heads of all the member States of the Community.

Mr. Roy Hughes: Is it not time that even this Government came to the conclusion that the EEC is beyond reform in respect of British interests? In particular, will the right hon. Gentleman bear in mind that Britain has made massive payments over the years and is still making them? Will the right hon. Gentleman also bear in mind the heavy unemployment in Britain and compare it with the situation in countries such as Austria, Sweden and Norway, with which we have previously been on a par?

Mr. Atkins: The EEC is no more beyond reform than any other body—even the Labour Party.

Mr. Douglas Hogg: Does my right hon. Friend agree that there has been some reform of the CAP, not least because in 1979 it took up about 80 per cent. of the budget while it now takes up less than 70 per cent. of the budget?

Mr. Atkins: Yes, Sir. We are making slower progress than any of us want, but as long as there is progress it is our business to pursue the ends that we all desire.

Mr. Heffer: Does the right hon. Gentleman not agree that over the years there has been attempt after attempt to reform the CAP and to achieve other reforms? However, there has been no reform. On this occasion, can we not ask the right hon. Gentleman for a clear declaration in the House that if we do not achieve the reforms—as seems likely—the Government will this time take a clear stand and bring the issue back to the House and to the British people for a clear decision.

Mr. Atkins: No, Sir. Under the auspices of the Labour Government, a clear decision was reached in 1975. This Government are not prepared to give up as easily as the hon. Gentleman apparently is.

Mr. Ward: Will my right hon. Friend take this opportunity to congratulate my right hon. Friend the Prime Minister on having done more to assist our cause in the Common Market than any other British Prime Minister? Does my right hon. Friend recognise that the Opposition probably waffle because it is the only subject upon which they are united?

Mr. Skinner: The hon. Gentleman is not very well informed.

Mr. Atkins: I agree with the first part of my hon. Friend's question, but not with the second part. I do not detect any more unity among the Opposition on this subject than on any other subject that is raised in the House.

Council of Ministers

Sir Anthony Meyer: asked the Lord Privy Seal if, at the next meeting of the Council of Ministers, he will raise the matter of the relations between the European Parliament and the Council of Ministers.

Mr. Humphrey Atkins: No, Sir. Relations between the Council of Ministers and the European Parliament were last discussed by the Council on 22 February and these discussions are being continued in the appropriate working group. In addition, discussions between the Council and the Parliament will be starting in the near future about the classification of expenditure in the Community budget and other aspects of the budgetary procedure.

Sir Anthony Meyer: Are the Govermnent altogether wise to slap down the European Parliament, where there is rather more support for a fair budgetary settlement than in the Council of Ministers? Does not the European Parliament serve a useful purpose in educating Opposition Members? During the recent catastrophic visit made by the right hon. Member for Ebbw Vale (Mr. Foot) and the hon. Member for Liverpool, Walton (Mr. Heffer) did they not discover that there is no support among the Continental Socialist parties for the alternative solution that they are putting forward?

Mr. Atkins: Yes, Sir. The European Parliament serves an extremely useful purpose, but I cannot agree that the Council of Ministers is slapping it down. We are entering into discussions with it on a variety of matters of common interest. During our Presidency, before Christmas, we took particular care to bring the European Parliament into our discussions. Indeed, my right hon. Friend the Prime Minister was the first head of Government to attend a meeting of the Parliament, which she did on 16 December to give an account of the immediately preceding European Council proceedings.

Mr. Hoyle: At the next Council of Ministers, will the right hon. Gentleman put on the agenda—for discussion with the European Parliament—a subject that many find obscene, particularly at a time of high unemployment? I refer to the large golden handshakes that are given to the Commission's top members. Will the right hon. Gentleman confirm that Michael Kennedy, the retiring Irish Commissioner, is to receive £40,000? In addition, how much did Roy Jenkins receive when he retired, and how much does he still receive from the Commission?

Mr. Atkins: I shall not do that and nor am I prepared to assist the hon. Gentleman in his campaign against a man who used to be his right hon. Friend.

Foreign Policy

Mr. Knox: asked the Lord Privy Seal if he will make a statement on progress towards a common European Economic Community foreign policy.

Mr. Humphrey Atkins: The Ten continue to work closely together. Foreign Ministers met on 23 February in Brussels and a wide range of foreign policy issues were discussed. The practical measures to improve political co-operation agreed by Foreign Ministers on 23 October—known as the London report—are being implemented.

Mr. Knox: In what spheres will foreign affairs initiatives be taken by the Community in the next few months? Does my right hon. Friend expect any further developments that will affect the Middle East?

Mr. Atkins: I expect political discussion and co-operation between members of the Community to continue and to improve as time goes by, in accordance with the arrangements made at the meeting in London to which I referred. I cannot now forecast the precise direction in which those initiatives will be mounted.

Mr. James Johnson: Will the right hon. Gentleman enlighten the House about the EEC's policy towards events in the Horn of Africa? Is the right hon. Gentleman aware that the Ethiopian Army, with the aid of Soviet Migs and tanks, has evicted ethnic Somalis from the Ogaden, their ancient homeland? Is the right hon. Gentleman further aware that, with the aid of EEC money, Ethiopian peasants are being settled on that land? Does the right hon. Gentleman accept that that is a form of genocide?

Mr. Atkins: I am aware of the problems and difficulties in that part of the world and I know that such matters engage the attention of the Ministers of the Ten. No doubt they will be discussed.

Mr. McNally: Do not the Lord Privy Seal's pious platitudes about political co-operation sound slightly hollow given that a Community initiative on El Salvador was possible? Why did the Lord Privy Seal break ranks with the rest of the EEC over El Salvador, when that was a perfect example of an opportunity for a Community initiative?

Mr. Atkins: At the Opposition's suggestion, the House spent three hours discussing El Salvador yesterday. I am sorry that the hon. Gentleman did not profit from that discussion.

Mr. Marlow: Does my right hon. Friend agree that we would be better able to co-operate in foreign policy with our friends on the other side of the English Channel were it not for the fact that in the last two months of last year we had a balance of trade deficit in manufactures of about £830 million—almost as much as one year's deficit with Japan—and for the massive haemorrhage of jobs that our present relationship with the Community has caused?

Mr. Atkins: My hon. Friend's description of the position is not accurate, and that position has had no effect on the political discussions between the Ministers of the Ten.

Reserve Forces and Adventure Training Scheme

The Secretary of State for Defence (Mr. John Nott): With your permission, Mr. Speaker, I should like to make a statement about our Reserve Forces.
In the White Paper in June setting out the conclusions of my defence review, I said that the Government were determined to give greater emphasis to the Reserve Forces, and that we intended to expand the strength of the Territorial Army steadily from 70,000 to 86,000 men and women.
Our first priority must be to improve the operational efficiency, equipment, accommodation and structure of the present Territorial Army. As the House knows, in the coming financial year we are providing for an increase in the average number of man training days to 42 for independent units, and if this increase is used effectively it will enable the Territorial Army to achieve a higher standard of training overall. We shall also be allowing selected units to recruit up to a total of 3,500 men and women above their establishment—to "overbear" as it is called—where they can make good use of the extra numbers.
We shall be raising new units. These will include the equivalent of two new regiments of Royal Engineers for home defence tasks—that is six squadrons in all. One extra company each will be raised for the Royal Irish Rangers, the 51st Highland Volunteers and the Royal Regiment of Wales. Reconnaissance platoons will be formed for 15 of the infantry battalions with a NATO role and signals rear link detachments will be provided to those NATO battalions which require them.
In addition, better use will be made of existing units through reorganisation. The infantry division based in Britain which will reinforce BAOR on mobilisation will include two brigades formed largely from Territorial Army combat units. This division will also rely for its logistic support on a regiment's worth of Territorial Army logistic units based in Scotland and the North of England. For home defence, the pressing need for improved reconnaissance will be met by re-roling three Yeomanry regiments.
The expanded Territorial Army must have suitable accommodation and equipment for its very demanding task. Twelve new Territorial Army centres will be started this year and existing accommodation will be modernised and improved. Issues of Milan anti-tank weapons and Clansman radios are proceeding well and that of the eight-tonne truck has just started. The LAW anti-armour weapon and the new small arms for the 1980s will be issued early to Territorial Army units assigned to BAOR.
I would also like to announce the creation of a new home service force which we plan to start by early September as a pilot scheme. It will be linked to the Territorial Army and will consist largely of men with considerable Service experience. The force will provide assistance to the regular forces in time of tension and war, particularly in the guarding of vital United Kingdom installations. A total of four trial companies will be raised in Scotland and Eastern, Western and South-Eastern districts. If the scheme is successful, I envisage that the strength of the force could reach 4,500.
We must be able to mobilise our reservists rapidly. The new computer-based individual reinforcement plan halves the time needed to mobilise our regular reservists. In last year's exercise over 90 per cent. of reservists reported and we shall build on this major success so that the scheme will eventually cover more than 50,000 men and women.
We shall go ahead with re-equipping the Royal Naval Reserve. Two of its three highly effective mine hunters have already undergone major refits and the third is currently doing so. We aim to replace the RNR's minesweepers by new vessels—Fleet minesweepers—at the earliest opportunity; and I can confirm to the House that we are now taking fresh tender action and that orders for the first batch of four will be placed this year.
In the case of the Royal Air Force, the House will be aware that three Royal Auxiliary Air Force Regiment squadrons for the ground defence of operational airfields were set up on a trial basis in July 1979 at Honington, Lossiemouth and Scampton. I intend to form further squadrons at St. Mawgan, Brize Norton and Marham in the course of the next two years.
Finally, there are the Cadet Forces, which have an important role in youth community service and as a source of recruiting to the Regular Services. We plan to provide some additional support for them in 1982–83, including an increase in expenditure on essential work services and new huts.
The significance of Reserve Service lies not just in the extra military capability which it gives, vital though this is. Just as important is the demonstration which it provides of the British people's commitment to their own security. The defence of our nation must be seen to depend not only on the quality of our elite professional Armed Services but also on a widespread popular commitment to our national defence. Most important here are our young people, who have little opportunity to come into contact with our Regular Armed Services—a high proportion of whom serve in Her Majesty's ships or abroad.
Due to the very low numbers leaving the Armed Services at present and the consequential reduction in recruit intakes, there is currently some spare capacity in the training establishments of all three Services. I have, therefore, examined a number of possibilities for temporarily filling our excess capacity and have decided on the following scheme. My intention is to offer up to 7,000 young people a short two or three week period with each of the Armed Services, starting from the middle of April this year.
The courses and all travelling will be free. Young men and women would apply through recruiting offices and would undertake courses with Service instructors covering a range of activities of the kind made available now on Outward Bound courses. Applicants from the Cadet Forces will have priority. The courses will be short, but I hope that a period of mixing with Service instructors will give the young people concerned an insight into Service life, leading on to the possibility of interesting them in joining the Reserves.
The expansion of the TA and the RAF Reserves, the creation of a pilot scheme for a new home service force, the continuing success of the Royal Naval and Royal Marine Reserves which are fully up to strength, and the more rapid system for the assembly of our Regular Reservists will combine, I believe, to form a useful


strengthening of our defences. The modest, wholly voluntary, scheme that I have announced for young people will, I hope, prove to be a success.

Mr. John Silkin: The Secretary of State ends his statement with the words:
The modest, wholly voluntary, scheme that I have announced for young people will, I hope, prove to be a success.
It is not quite as ambitious a scheme as we were given to understand from the leaks in the press. Indeed, it is a very small scheme, involving 7,000 young people for two or three weeks.
We have had a Reserve Forces statement about a programme that is not very revolutionary and not very large. It is surprising to note that the statement has been made by the Secretary of State for Defence and not by one of his junior Ministers. Presumably the reason for that—[Interruption.] We have heard a very long statement and it is customary for the Opposition to reply to a statement and to ask questions afterwards. The Minister of State for the Armed Forces has been in the House long enough to know that.
I believe that the statement follows the realisation that on each side of the House there is alarm, fear and worry about the cost of the Trident programme and the effect upon the conventional defence of this island. This "modest" scheme for Reserve Forces would have come in any event. It is designed to cover up the deficiency in our conventional Forces. Is it not a fact that the Secretary of State's press release of 25 February 1982—only about 10 days ago—showed that total recruitment for the Armed Forces was down by 54 per cent. in the last half of 1980? compared with the last half of 1980? Is it not a fact that the number of Royal Naval officers has decreased by 50 per cent. in the same period, and that Royal Naval ratings have decreased by 87 per cent.? Is it not a fact that the Army is down by 55 per cent. and that the Royal Air Force is down by 25 per cent.?
In the light of all that, is it not true that this statement is merely a smokescreen to try to prevent the House from understanding what is being done to our conventional Forces?

Mr. Nott: I decided to make the statement myself because in the defence White Paper which we published last June—just before the right hon. Gentleman took his present post—I laid considerable emphasis on the need to expand our Reserve Forces. It was an essential part of the defence White Paper, and I regard it as being of the greatest importance to our defences, as I said last summer.
When the right hon. Gentleman says that the scheme for young people is not as ambitious as some newspapers predicted, I am not quite sure whether he wants it to be more ambitious or less ambitious. He did not make that clear. At one time I hoped that we might have a more ambitious scheme. One of the ideas that we considered—using it as part of the youth employment arrangements—was opposed by the Manpower Services Commission, so we did not proceed with that more ambitious scheme.
In answer to what the right hon. Gentleman said about numbers, I can only tell him that the Services now have greater numbers than they did when his Government left office. The strength of the Armed Services is far greater now than it was when he was a member of the last Labour Government.
On recruitment, the right hon. Gentleman is quite right when he says that the last quarterly figures show that the outflow from the Services—the number leaving the Services—is lower than at any time since conscription. We should be pleased about that, because it shows that we have highly trained professional Services. Because the outflow from the Services is so low, recruiting this year will be about 23,000 for all three Services, instead of the higher figure that we would expect if retentions had not been so high. So our conventional Forces are overwhelmingly stronger than they were when the right hon. Gentleman's Government left office, and that is the way that it will remain.

Sir Philip Goodhart: I regret that we have not been able to press ahead with the more ambitious schemes to which my right hon. Friend referred, but I congratulate him on his statement today. Has he any intention to increase the number of regular officers and NCOs who are attached to Territorial Army units to increase operational efficiency?

Mr. Nott: My hon. Friend was most interested and worked hard on this issue when he was with me in the Ministry of Defence, and I am grateful to him for all the work that he did. We are following the recommendations of the Shapland report. We are creating specialist training teams and recruiting teams which will be composed of regular soldiers, NCOs and officers in an endeavour to improve the training, recruitment and efficiency of the existing TA.

Several Hon. Members: rose—

Mr. Speaker: Order. I propose to allow questions on the statement to run until 4.10 pm. If questions are to the point, I should be able to call everyone who wishes to speak.

Mr. A. J. Beith: We welcome the strengthening of the Territorial Army. Can the Secretary of State say more about the reconnaissance platoons that are to be attached to the NATO-linked TA units? On the youth scheme, which can only be described as an adventure holiday scheme, is he aware that there is nothing in the scheme to which anyone can take exception, were it not for the fact that the Government are unable to tackle the major problem of 3 million unemployed people?

Mr. Nott: I described the scheme as a modest one. I make no huge claims for it. If it is popular among young people and they experience Service life, it will prove useful; I put it no higher than that. I believe that it will be popular, and I hope that young people gain something from it.
The reconnaissance platoons will be three Yeomanry regiments which will be re-roled—they will be given a different task. They will be involved in home defence tasks, not in BAOR reinforcement tasks. The idea is to make them more mobile, so that the Commander-in-Chief United Kingdom Land Forces has mobile units to move around the country to meet emergencies.

Sir Hector Monro: As a former member of the Auxiliary Air Force, may I tell my right hon. Friend how delighted all auxiliaries will be about their expanding role in the defence of the country? In view of the great success of the auxiliary squadrons in the last war, is there any hope of a flying role for auxiliaries in the future?

Mr. Nott: We do not have a scheme of that kind at present. As my hon. Friend knows, we are still short of pilots. One of our greatest problems in the regular RAF is finding sufficient pilots. We are doing our best to recruit more, and the numbers are increasing. At present there is no plan to use the Auxiliary Air Force in a flying role, but I take note of my hon. Friend's wishes.

Mr. A. E. P. Duffy: Since at least 50 per cent. of the combat Forces that are available to Allied Command Europe in a time of conflict will come from Reserves, is it not imperative that Britain's contribution to those Reserves should be credible? Will the Secretary of State therefore answer the following three questions? First, will he say a word about the retention rate in the second year of the Territorial Army? Secondly, is he satisfied with the quality of the current training and equipment of the Volunteer Reserves, both of which are crucial to a properly motivated Volunteer Reserve Force? Lastly, is there not a danger of being complacent about the effect that the individual reinforcement plan will have on a requisite rate of readiness?

Mr. Nott: Exercise "Crusader" which, as the hon. Member knows, involved many thousands of our Reservists for the reinforcement of our regular divisions on the Rhine, was an enormous success. It was thought by all our NATO allies to have gone remarkably well, and it greatly increased the confidence of NATO to reinforce and reinforce rapidly. The retention rate in the Territorial Army is not satisfactory in many units. The wastage rate in many of our TA units is too high, and we are anxious that the new specialist training teams should help to improve the motivation and retention rate of some of the existing TA units. They vary widely from one unit to another, but I agree that there is much room for improvement.
I did not understand the hon. Gentleman's question about the reinforcement plan, so I am afraid that I cannot comment on it.

Mr. D. A. Trippier: I congratulate my right hon. Friend on his statement. Has he any plans to increase the establishment of the Royal Marines Reserve?

Mr. Nott: The Royal Marines are fully up to strength and are highly successful. Recruiting is going very well, and much as I should like to increase the Royal Marines strength at present there are no plans to do so.

Mr. Robert C. Brown: I was a serving member of the Army and a member of the Army Reserve. Are not the short courses for young people a measure of the complete bankruptcy of the Government's policies—that they must run round the streets picking up people to fill vacancies in establishments of Her Majesty's Armed Forces? As to the Territorial Army, which has an important part to play in Britain's defence, and the home service force being linked to the Territorial Army, why does not the Secretary of State think about spending some money on the recommendations in the Shapland report to improve the efficiency of the Territorial Army?

Mr. Nott: On the hon. Gentleman's latter point, that is exactly what we are doing. We shall be spending an additional £12 million on the Territorial Army in 1983–84 above what had originally been intended. During the next three or four years we shall increase expenditure on the

Territorial Army by about £50 million. We have made a relative switch from the total Army budget into the Territorial Army. We are following the broad thrust of the Shapland report and many of its details are being implemented.
We must see whether young people are interested in the scheme. If they are, the bankruptcy of the hon. Gentleman's approach to the matter will be proved by the scheme's success. If youngsters are keen to spend a fortnight or three weeks with the Services, both they and I will be content, and the hon. Gentleman's comments will prove to have been bankrupt.

Mr. Antony Buck: Is my right hon. Friend aware that those who try to give sensible, non-partisan attention to defence matters will welcome what he has said today? What progress is being made in expanding the Territorial Army in the way envisaged, apart from his statement today about the future? How is the home service force to be commanded, and what will be its structure? Similarly, how will the Royal Naval Reserve and the young persons' scheme work? Will he confirm that the latter scheme is welcomed by the Armed Forces, and will he tell us how it is to be operated on the ground?

Mr. Nott: The time scale for the build-up of the Territorial Army must depend upon our progress in recruiting. The speed at which we can build it up depends on the number of people coming forward to the new units. I hope that, within the next two or three years, if our plans are successful, about 15,000 more people will have joined the Territorial Army since we took office. The expansion is going well.
The easy way to get the home service force off the ground on a trial basis is to link it initially to the Territorial Army. That is the plan. The pay and bounty arrangements, which we must settle finally, will be linked to the Territorial Army. The Royal Naval Reserve is up to strength. Our overwhelming need in the Royal Naval Reserve is to receive four new trawlers, orders for which we hope to place this year. The Reserve has 11 vessels at present. It is up to strength and doing well.
I do not recall my hon. and learned Friend's question about the scheme for young people.

Mr. Buck: rose—

Mr. Speaker: Order. With all respect, I believe that the hon. and learned Gentleman has had a good run.

Mr. Frank Allaun: Why is the Ministry of Defence spending money on the youth scheme if it will get nothing out of it? Is it out of the goodness of its heart, or is it because this is a prelude to compulsory national service for the unemployed?

Mr. Nott: It has nothing to do with national service or conscription. It is a voluntary scheme. No one needs to apply for it unless he is interested in it. It is likely to generate considerable interest, especially in the part of Britain from where the hon. Gentleman comes. I am sure that youngsters will note his rather lukewarm views on the scheme. We are spending money on young people because we believe that they are worth it.
Because of the present high retentions in the Services and our belief that recruiting will be lower as a result of that, we have some temporary spare capacity in our training establishments. We may as well use it in a useful way. In addition, if some of the youngsters enjoy the


scheme and are interested in it, they become potential recruits to the Territorial Army, the Royal Naval Reserve and the Royal Air Force Reserve, which will be beneficial to our defences.

Mr. Neil Thorne: As a reserve soldier in my last few weeks of 30 years of voluntary service, may I ask my right hon. Friend whether the overbearing for Territorial Army units will include overbearing in every rank, because it is important that there should be opportunities for promotion if recruiting is to be at the maximum? Also, bearing in mind the exceptional service of the Reserve Forces in time of war, will my right hon. Friend consider carefully the names of the units to be resuscitated, because some famous names should be encouraged and will lead to a much greater emphasis on recruitment?

Mr. Nott: Naturally, the idea of creating or resurrecting some of the famous cap badge names greatly appeals to me, as it does to my hon. Friend. However, as we must have a steady and well-ordered expansion of the Territorial Army, we believe that it would be more sensible to create new units and add them to existing regiments and battalions for the time being. We do not intend to create any new cap badge units or to resurrect old ones at present.
We wish the overbearing to be relatively flexible. It must be a controlled arrangement. I intend that units that are recruiting well should not be restricted to the extent that they have in the recent past. There should be room for successful units to recruit more people. However, I take note of my hon. Friend's remarks about all ranks, and I shall ensure that they are properly studied.

Mr. Richard Crawshaw: Does the Secretary of State agree that our Reserve Forces provide the best value for money of all our Services? Will he also bear in mind that, during the past 20 years, we have blown hot and cold in calling for volunteers and then axeing units shortly afterwards? That is the reason for the wastage of Territorial soldiers. Will the right hon. Gentleman try to maintain some continuity at least in the next few years? The three weeks training at defence establishments is a step in the right direction, but will the Secretary of State also consider that some of our Service apprenticeship schools are undermanned because of defence cuts? Is there any possibility of training young people not for the Armed Services but for industry?

Mr. Nott: The Ministry of Defence is by far the largest recruiter and employer of apprentices in Britain. I wish to expand that. We put schemes to the Manpower Services Commission to enable us to recruit more apprentices through MSC arrangements, but that did not find favour with the MSC for reasons that I do not criticise. It is expensive to recruit an apprentice compared with other sorts of training. I agree completely with the hon. Gentleman that we wish to have stability and continuity in the Territorial Army. Some of the things that have happened to it—blowing hot and cold, as the hon. Gentleman said—have not helped. I am grateful to the hon. Gentleman for welcoming the scheme for young people, which I hope will go well.

Mr. Bill Walker: Most people who are interested in defence, the Cadet Forces and young people will welcome my right hon. Friend's

statement. As a serving officer in the Royal Air Force Volunteer Reserve, I endorse what my right hon. Friend said. Will he consider the experience of the Royal Hong Kong Auxiliary Air Force in the training of pilots to see whether any lessons can be learnt from it? Will he also confirm that serving members of the Royal Air Force Volunteer Reserve, who travel long distances to their units, will in future not be out of pocket as a result of travelling to those units?

Mr. Nott: I shall look into that important question. I am conscious of the point made about the need for some flying opportunities for the RAF auxiliary. I have examined the American practice, which my hon. Friend knows all about. I should like to see whether we could develop in that direction, but it would require more assets. At present, all our money is going into the re-equipment of the regular RAF. It would be an expensive route to move down at present. However, I am broadly in favour of my hon. Friend's ideas and we shall continue to discuss them within the Ministry of Defence.

Mr. Geoffrey Johnson Smith: Is my right hon. Friend aware of the growing public awareness of the social value of some form of national service? Does he agree that perhaps the time has come for the Government to set up an inquiry into a national service that offers the choice of civilian or military service?

Mr. Nott: That is a wider question than the one to which my statement was devoted. We have chosen voluntary service rather than conscription for our Armed Forces in the last few years. We can recruit the volunteers we need for our professional Armed Forces, and in that way we keep Service men for longer periods. It means that they are highly trained. Indeed, they need to be to use the highly sophisticated weapons of today. We have gone down the voluntary route rather than the conscription route. The wider scheme mentioned by my hon. Friend will continue to be debated publicly, but, as he knows, compulsory service in the Armed Forces does not find a great deal of favour within my Department.

Mr. Ioan Evans: What is the financial cost of this scheme? Will it be additional to the existing £12 billion expenditure on defence? Is not the high retention in the Services due to the fact that we have 3 million unemployed? As well as giving youngsters an opportunity of military service, why not give them an opportunity of undertaking voluntary service overseas?

Mr. Nott: There is nothing to prevent young people from serving overseas. I hope that they do. I am providing them with another option—a two-week or three-week Outward Bound-type course with the Services. I am greatly in favour of young people serving overseas for a time, and there are facilities to enable them to do so.
We should be pleased about the high retention in the Services. It means that our Armed Services are better trained, because the experienced people are remaining longer. That seems to be worthwhile.
The cost of the young peoples' scheme will not be very great because we shall be using capacity that must remain in use anyhow. The costs relate mainly to travelling to the places where these activities will take place and to food. We estimate that the extra cost will be about £1½million. We think that that is useful expenditure, both for the young people and because it may interest people in the reserve service.

Mr. Keith Best: As a serving member of the Territorial Army, may I tell my right hon. Friend that his statement will be welcomed, particularly the increase in manned training days on which much of the continued viability of the TA depends? Is he aware that the viability—indeed, the credibility—of the TA depends upon its equipment? What are his plans, and the time schedule for them, for equipping the TA with Clansman radios and Milan anti-tank weapons? As an ex-airborne soldier, may I ask whether he will consider the reactivation of a Territorial airborne brigade?

Mr. Nott: I am afraid that at the moment I cannot act on my hon. Friend's last point. The Milan and Clansman deliveries are now coming forward well. We are setting the number of manned training days at 42. It will probably take time to move up to 42; it will not happen overnight. If we are successful in building it up to 42, we intend to move it up to 44 days. We are perfectly happy to do so, but there is no point in doing so until the 42-day period is successful and we have made it stick.
Apart from equipment, the TA has buildings in which it can operate. This year we shall start new centres in 12 locations—Bangor, Bedford, Sutton Coldfield, Telford, York, Colby Newham, Walsall, Colchester, Bath, Widnes, Aintree and Alnwick.

Mr. Bob Cryer: Will not the total cost of this extension of the home service and the youth scheme be several million pounds? Is it not remarkable that the Minister has said that he and the Government are concerned about young people when they are cutting student grants as well as higher, further and secondary education? The right hon. Gentleman does not fool the House by cynical manipulation of the unemployed. Will he confirm that the youth scheme is designed as a public relations exercise because he is green with envy at the enormous success of the Campaign for Nuclear Disarmament among young people and wants to show that the massive expenditure so uselessly devoted to the Armed Services is doing some good?

Mr. Nott: I wish that the hon. Gentleman had gone on the youth adventure scheme; I think that it would have done him a lot of good. I only regret that the age limit is too low. I think that compulsory service for some hon. Members would be valuable for the country, but I am not in favour of it as a general principle.

Mr. Robert Atkins: Is my right hon. Friend aware that all Conservative Members. warmly congratulate him on his statement and the terms in which it has been made? What about the fuel shortages that are currently experienced by Territorial units? Will the new units to be set up get a further allocation of fuel, and will my right hon. Friend make more fuel available across the board for TA exercises?

Mr. Nott: We hope that the fuel restrictions will be less severe in the next financial year than many of the problems that all three Services have suffered this year. I am anxious that that should be the case. I speak from memory, but I

think that Ministry of Defence purchases of oil amount to about £800 million a year. If the price of oil falls, that will ease our position and will be welcome. I understand from the newspapers that it is not welcome to all Departments, but as a customer spending £800 million a year on fuel I welcome it for the help that it will give.

Mr. Andrew F. Bennett: Is the right hon. Gentleman aware that among people who walk and climb in the countryside there is considerable concern about the attitudes demonstrated by some military instructors who see the countryside merely as a physical obstacle course and have little concern about it? Will he ensure that in these courses there is a fair balance between teaching physical skills and a concern and interest not only about the countryside but about human dignity and human life? Is it not absurd to be cutting many local authority outdoor pursuit centres while at the same time introducing this scheme?

Mr. Nott: The qualities described by the hon. Gentleman as being desirable are the very qualities that we wish to develop in a short scheme of this sort. Respect for the countryside and all the other things that he described will, I hope, be part of the central objectives of the scheme. In fact, as one of the largest landowners in the country, the Ministry of Defence places conservation at the top of its objectives and has always done so. I am sure that the hon. Gentleman will agree with me that this is a valuable role.

Lord James Douglas-Hamilton: As another Army Reservist, I ask my right hon. Friend to recall that the bulk of the TA was axed by the Labour Government in 1967. Is he aware that his statement goes a very long way to redressing the balance and that there will be hopes that the regimental battalions will in due course be restored?

Mr. Nott: I am very well aware of that, and I am glad that my hon. Friend noted it.
I hope that the House heard the hon. Member for Keighley (Mr. Cryer) say from a sedentary position that he thought it very good that the Labour Government had axed the TA. I put that on the record as being indicative of the attitudes that exist in the new Labour Party.

Mr. John Silkin: My hon. Friend the Member for Keighley (Mr. Cryer) asked the right hon. Gentleman a question which he dodged. Will the right hon. Gentleman come clean with the House? What are the costs of these proposals? Why does he not tell us what they are?

Mr. Nott: I have already given that information several times. I have said that the extra cost for the Territorial Army expansion will be about £12 million in 1983–84. I have said that the youth scheme that I have announced will probably cost about £1,500,000 a year. As for the trawlers for the Royal Naval Reserve, the order for a batch of four which we will place this year will cost about £10 to £12 million throughout the building period. I thought I had answered those questions. What other questions does the right hon. Gentleman want me to answer?

House of Commons (Broadcasting)

Mr. Leslie Spriggs: On a point of order, Mr. Speaker. It will be within your memory, Mr. Speaker, that yesterday afternoon I raised a question with the Prime Minister about the taxation of widows' pensions under the mineworkers' pension scheme. Yet I received a telephone call this morning asking me why I had not used the opportunity to raise this matter with the Prime Minister since another hon. Member raised a similar question. It is clear to me, since the constituent who telephoned me had expected the news to be in the late-evening programme about the proceedings in Parliament, that she had not been told that her Member of Parliament had used the only available opportunity to raise this question with the Prime Minister.
There seems to be some personal bias. It is quite clear that the editor has done this on a number of occasions when other Back Benchers and I have been concerned. Therefore, Mr. Speaker, I am asking you not only for your guidance but for your protection in offering the House some way of sharing the system of editing the news programme "Today in Parliament".

Mr. Speaker: When the House resolved to have its proceedings broadcast, it consciously decided that it did not wish to have editorial control over the substance of the broadcasts. There was a debate on the question. I quite understand the feelings of the hon. Gentleman, who has asked an important question, but the House has given editorial responsibility to the BBC.

Mr. Ivor Stanbrook: May it be said, on behalf of most hon. Members, that we consider the editorial work of the BBC to be eminently fair?

Mr. Speaker: I am quite sure that the comments of both hon. Members will have been heard. I get in every day, so I have no complaint!

BALLOT FOR NOTICES OF MOTIONS FOR FRIDAY 19 MARCH

Members successful in the Ballot were:

Dr. Edmund Marshall
Mr. Tim Brinton
Mr. Clinton Davies.

BILL PRESENTED

WATER AUTHORITIES (PUBLIC ACCOUNTABILITY)

Mr. Christopher Murphy, supported by Mr. Richard Alexander, Mr. Jack Aspinwall, Mr. Michael Brown, Mr. John Carlisle, Mr. Denshore Dover, Mr. Harry Greenway, Mr. Warren Hawksley, Mr. Matthew Parris, Mr. James Pawsey, Mr. K. Harvey Proctor and Mr. Gary Waller, presented a Bill to make mandatory under section 6(8) of the Water Act 1973 the appointment of a water consumers' committee: And the same was read the First time; and ordered to be read a Second time tomorrow and to be printed. [Bill 77.]

Hotels and Restaurants (Control of Service Charges)

Mr. George Robertson: I beg to move,
That leave be given to bring in a Bill to regulate the administration of service charges in hotels and restaurants; and for connected purposes.
This is a simple, uncontroversial measure designed to produce justice for the customer of an hotel or restaurant as well as for the staff of the same establishment.
Few people who patronise an hotel or restaurant are immune from service charges. Amounts range from 10 per cent. to 15 per cent. and are commonly added to most bills. It is obligatory to pay it. Remarkably enough it has to be paid despite the service provided and whatever its standard. In the best hotels and in the worst, if the service charge is on the menu when one orders, one must pay it.
The rub for the staff is that the service charge—designed as it was to spread gratuities and tips more fairly and equitably to staff—is, incredibly, the legal property not of the staff but of the management. Last year, Lord Gowrie, then Minister of State, Department of Employment, told me:
As things stand at present, this money is the property of the employer and he may use it in any way he chooses including for payment of the statutory minimum wage rates laid down by the Wages Council.
That is outrageous, skinning, as it does, both the customer and the staff at the same time.
The principle of the service charge is that it goes to the staff eventually, even if they do not own it, even if they know little of it and its distribution, and even if it is simply used to pad out the disgracefully meagre minimum rates laid down by the wages council. However, even that is not happening. Employees have no right to know how much is collected by the employer in service charges, nor how or if it is distributed to the staff. At best, therefore, a suspicion is left in people's minds about the destination of the money and at worst—and this is all too common—service charges are simply skimmed off as extra profit.
Last June the major hotel trade paper, the Caterer and Hotelkeeper, in an editorial entitled "Tipping needs cleaning up", stated:
Service charges levied automatically on bills have the merit of allowing those staff to share some of the revenue supposedly given by the public in appreciation of the quality of the service to which they have contributed indirectly.
However, it went on:
The problem here is once the system has been in operation for a while, staff no longer know whether revenue from service charges really is being distributed to them, and, if it is, how it is shared out.
Even the trade itself, therefore, recognises the existence of the problem. One hotel owner has written to me saying that since the expression "service charge" is so notorious in the industry as just another name for siphoned-off profits, he refuses to use the term and puts on his bills, "Levy in lieu of staff gratuities". A restaurant which I visited recently puts at the foot of its bills "Service charge where levied is collected by us on behalf of our staff". In these cases at least, the customer knows where his enforced gratuity is going, but these are all too rare examples.
Hotel and restaurant staff up and down the country know that they are being robbed and that customers are


being conned. If we add up the 12½ per cents. and the 15 per cents. on practically every hotel and restaurant bill in Britain, we have a possible multimillion pound fiddle. Yet those who are being robbed are among the most poorly paid people in the working population.
Today, however, the issue now goes beyond the service charge racket. The same issue of Caterer and Hotelkeeper said:
Sometimes customers tip on top of the service charge, implying they don't really understand why it is there. What this appears to mean is that the service charge is becoming another form of cover charge.
Indeed, the Hotel and Catering Workers Union, of which I was for many years an official and by which I am sponsored, now has evidence that the Inland Revenue is assessing hotel staff for gratuities that it claims are being received in addition to distributed service charges.
So discredited is the supposedly simple, easily understood, separate service charge that customers are now being encouraged or gently, and sometimes not so gently, forced to part with another levy on top of it.
Tipping and staff wage subsidies, along with other cover charges, will soon account for a larger item than the cost of food or of a room. What will happen then? Will there be a rates charge, a gas price increase charge, a food price increase charge, maybe a staff income tax charge, or, say, a management holiday in the Bahamas charge, levied on the customer's bill? The possibilities are endless, yet no more illogical than a charge for service which does not go to those who provide that service.
The scandal is simple. Many thousands of the lowest paid workers in the community should be benefiting from the service charge on bills, adopted from continental practice. Where they are not, or where it is simply being used to subsidise low wages or the employer's profits, they are being ripped off, and so are the customers, who think that the 12½ per cent. means that no tipping is necessary, because it goes to the staff.
This simple legislation would give the customer the right to know that the money is going where he wanted it to go, and the staff the right to what is properly theirs

anyway. It would be no more of an obligation on employers than what, as their own trade press says, they should be doing in any event. It would tidy up a multimillion-pound scandal which touches every one of us who uses a hotel or restaurant.
The Bill would also be used to seek to regulate the use of the words "service" or "service charge" on bills. A separate service charge is at least separate, and the money, wherever it goes, is still collected separately. But what about the term "service inclusive"? Does it mean that tipping is unnecessary because 10 per cent. or 12½ per cent. of the bills go to the staff? Does it mean that service is a separate component in staff pay? Does it mean that staff will always be paid above the appalling minimum wage levels? Or is it a device to pretend that a staff bonus is tied up in the price put before the customer? The effect is that some customers tip, some think that they do not need to, some are suspicious, but most take it on trust—and the staff usually lose out.
The sour taste left by the continuing scandal of service charges does the hotel and catering industry—indeed, the tourist industry—immense damage and demeans its image and reputation at home and abroad.
The Bill would do much to clear out this particular nasty skeleton from the hotel and catering industry's cupboard, and I commend it to the House.

Question put and agreed to.

Bill ordered to be brought in by Mr. George Robertson, Mr. Robert C. Brown, Mr. A. E. P. Duffy, Mr. Jack Ashley, Miss Betty Boothroyd, Dr. John Cunningham, Mr. James Johnson, Mr. Giles Radice, Mr. Frank R. White, Mr. Michael English, Mr. Don Dixon and Mr. Neil Carmichael.

HOTELS AND RESTAURANTS (CONTROL OF SERVICE CHARGES)

Mr. George Robertson accordingly presented a Bill to regulate the administration of service charges in hotels and restaurants and for connected purposes: And the same was read the First time; and ordered to be read a Second time upon Friday 2 April and to be printed. [Bill 79.]

Canada Bill

Considered in Committee [Progress, 23rd February]

[MR. BERNARD WEATHERILL in the Chair]

Mr. George Cunningham: I regret that I have to raise with you Mr. Weatherill a point of order arising out of your ruling at the beginning of the first day of the Committee stage, when you referred to schedule B as
a specific and complete document".
You added:
In order to protect the Committee's right to consider amendments to the schedule … the effective way to seek to amend the schedule is to table amendments to clause 1."—[Official Report, 23 February 1982; Vol. 18, c. 760.]
I understand, however, that the view has been tendered that, irrespective of whether any amendment to clause 1 is carried, no amendment to schedule B would be in order, because of the nature and origin of the text in that schedule. I submit that that view is an incorrect statement of the practice and procedures of the House, and that our procedure does allow an amendment of schedule B to be in order.
I feel that I must raise this point now because of the danger of creating a precedent, whereby parts of Bills which are now amendable would become unamendable, because, although a Bill like this one is not likely to recur, the point could crop up in normal domestic legislation—and has indeed done so in the past.
The point is probably academic to the conduct of the remaining stages of this Bill, because even if I persuaded you right now of my point, Mr. Weatherill, you would still be free—and in my respectful submission would be right—to decline to select any amendment to schedule B, on the grounds that the subject of it had been adequately debated and the view of the House on it made clear on the amendments to clause 1 under the procedure recommended in your ruling of 23 February.
I shall therefore make my submission briefly and ask you to be prepared to receive fuller representations on it privately. Meanwhile, the Bill could go on its way without prejudice to the fundamental procedural issue involved.
There is no doubt that the practice and procedure of the House recognise that there can be parts of Bills to which amendments are out of order. We happen to have an example in a Bill at present starting its course in the House of Lords, the Civic Jurisdiction and Judgments Bill. That Bill is intended to give legal force in this country to international conventions on the subject. The texts of the conventions are set out in schedules. Clause 2 of the Bill refers to the conventions as such and indeed goes so far as to say—so far as I know using this formula for the first time—that the texts are set out in the schedule "For convenience".
Another example is the Diplomatic Privileges Act 1964, which gave effect to some of the articles of the Vienna Convention on Diplomatic Relations. The articles in question were set out in a schedule, and section 2 of the Bill said:
the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention …) shall have the force of law".
Clearly, it would not be sensible for the House to allow an amendment to be made to the text set out in the schedule

in such a case. The text is set out in the schedule really only for information. It could be referred to by its title only. The text has its own independent existence apart from being in the schedule, and is recognised in the text of the Act as having that separate independent existence.
"Erskine May" recognises this situation at page 523, where the relevant passage reads:
When a Bill is introduced to give effect to an agreement or to confirm a scheme and the agreement or scheme is scheduled to the Bill as a completed document, amendments cannot be made to the schedule".
In the footnote to that passage "Erskine May" gives only one precedent, that of the Coal Mines Control Agreement (Confirmation) Bill 1917.
4.30 pm
What is significant about that precedent is that the agreement in question was reached by parties outside Parliament and that the Bill referred to the text in the schedule as an agreement, having its own independent existence, apart from being set out in the schedule. The Chairman, for that reason, ruled that any amendment on the text of the schedule was out of order. I understand, from our procedural advisers, that a precedent which has been thought relevant and to justify the present case, is the Irish Free State Constitution Act 1922. In that case the Chairman of the Committee ruled on 28 November 1922 that no amendment to the schedules was in order once the clauses describing them had been passed. The schedules contained the text of a measure passed by the Irish Free State Constituent Assembly in Dublin and the Bill stated that that was what they contained. Such texts clearly had their own independent existence, apart from being set out in the schedules, and the text of the Bill made it clear that it was the independent thing that was to be contained in the schedules.
I submit that all those precedents are good cases of non-amendability, but that the present Canada Bill is not in the same category.
Clause 1 of the Canada Bill refers to
The Constitution Act, 1982 set out in Schedule B".
The text of schedule B may have originated in Canada, as we all know it has, and it may be the text as adopted in resolutions passed by the Senate and House of Commons in Canada. However, the clause does not provide that that is what it must be. "The Constitution Act, 1982" means nothing in its own right until this Bill comes into force and they will then mean whatever the text of schedule B then contains.
The Chairman of the 1922 Standing Committee on the Irish Free State Bill, when referring to the document, said:
These are specific documents. Any alterations made in them would be inconsistent with the description in clause 1."— [Official Report, 28 November 1922; Vol. 159, c. 538.]
That does not apply in this case because, even if one amended schedule B, the description in clause 1 could still be the same. We often give a title to a schedule in our normal legislation—perhaps: "Housing Construction Regulations". The clause from which that schedule would hang might say, "The housing construction regulations set out in schedule X, shall have effect for such and such a purpose." That does not prevent the House from first passing the clause, but then amending the text of the schedule. Unless the text of the schedule has an independent existence and the clause in the Bill makes clear that it is that independent thing that is to be made law, I submit that any schedule is amendable.
The rule that in general schedules are just as amendable as other parts of the Bill is, of course recognised in our excellent manual of procedure, a book worth far more than "Erskine May". It would have been possible for clause 1 of the Canada Bill, I submit, to be drafted in a way that made the schedule unamendable. If clause 1 had said "part X of the resolutions adopted by the Parliament of Canada on dates X, as set out in schedule 8 to this Act", or something of that sort, the rule would have applied. However, it does not apply to the Bill as it now stands.
In case it is argued that the words of the preamble substitute for that sort of clause when they say:
Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth",
I respectfully submit that, if those words are effective for this purpose, they would have to mean that any amendment to the Bill—clauses as well as schedules—would be out of order.
However, since we are debating amendments to clause 1, under the guidance of the Chair, we all appear to be estopped from invoking that argument. Accordingly, I submit that amendments to schedule B are not necessarily out of order on the grounds quoted and, in view of the importance of the point—not for this Bill but for future proceedings on other Bills—I invite you, Mr. Weatherill, to reserve the point for determination later, while we proceed with the Bill, since, for the reasons stated earlier, there are perfectly good grounds for not selecting any amendments to schedule B, even though they are in order under the procedures and precedents of the House.

The Chairman: I am grateful to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) for giving me a full statement in advance of his point of order. Before giving my ruling at the beginning of the Committee's proceedings last week, I did, of course, consider all the relevant precedents and, in particular, the proceedings on the Irish Free State Constitution Bill of 1922, to which the hon. Gentleman referred.
The sense and effect of clause 1 of the Canada Bill is to endorse the text of
The Constitution Act, 1982, as set out in Schedule B
without amendment. If clause 1 is not amended that must, therefore be the end of attempts to amend schedule B.
The hon. Gentleman has submitted that clause 1 does not say in terms that "The Constitution Act, 1982" is the Constitution Act as adopted by the Parliament of Canada. However, as the preamble of the Bill makes clear, Canada has requested and consented to the enactment by the United Kingdom Parliament of
the provisions hereinafter set forth.
This request and consent is confirmed by the resolution regarding the constitution of Canada, which was adopted by the House of Commons in Ottawa on 2 December 1981 and which the Minister of State read out to the Committee last Wednesday. This resolution requests Her Majesty, among other things, to lay before the Parliament of the United Kingdom:
A measure containing the recitals and clauses hereinafter set forth.
These two documents—the preamble to the Canada Bill and the Ottawa House's resolution—enable me to identify "The Constitution Act, 1982" referred to in clause 1 of the Canada Bill as the constitution passed by the Parliament

of Canada. It does not, in my view, follow—as the hon. Gentleman suggests—that the whole of the Bill is made unamendable by the words used in the preamble.
May I stress that the rulings that I have given today and last Wednesday on the proper course of proceeding derive from the way in which this particular Bill is drafted, and no general conclusions relating to constitutional Bills or Bills for confirming treaties or agreements should be drawn from it.

Mr. J. Enoch Powell: Further to that point of order, Mr. Weatherill. I respectfully hope, despite the detailed ruling which you have just been good enough to give to the Committee, that you will, nevertheless, decide to avail yourself of the suggestion for further consideration made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham). He performed a service to the Committee by raising more effectually the points which I ineffectually sought to bring to the attention of the House by an amendment to the motion for Second Reading which I put on the Order Paper.
You appealed in your ruling just now, Mr. Weatherill, to the content of the preamble as affecting crucially what was or was not in order in debating the text of the Bill. Indeed, at a later stage, you referred to the drafting of the Bill as including the wording of the preamble. This is obviously a most important ruling and precedent if it is to become such because, since we notoriously do not enact and cannot by our procedures debate, still less amend, the preambles to Bills, we are in an extremely difficult position, if the drafting of the preamble is, in effect, to alter the drafting of the Bill, in the view of the Chair, and thereby certain parts of it become unamendable.
Obviously, therefore, if I may so submit, your ruling, Mr. Weatherill, goes far beyond not only a Bill that might be similar to the present Bill in giving effect to some other pre-existing document, but could modify the rights and opportunities of the House in considering other legislation if the wording of the preamble is held to influence the interpretation of the text of the Bill.
May I respectfully draw attention to one other point raised by your ruling, Mr. Weatherill? Under your own ruling of last week we have been engaged in discussing effectively amendments to the schedule, and had the Committee so decided we would have amended the schedule. I confess that I have been under the misapprehension that in your view the schedule was amendable, but because of the drafting of clause 1 it had to be amended indirectly by amendments to clause 1.
However, unless that is the case—which I did not understand to be the force of your ruling—we seem at one and the same time to be saying that the preamble has declared the document in the present schedule B to be unamendable. Nevertheless, we have discovered, with the assistance of the Chair—the whole Committee was grateful to the Chair for that discovery—a means whereby we might not only debate amendments to the schedule but could carry those amendments if that was the will of the Committee. I hope that it will be possible to take those two points into account.

The Chairman: I shall clarify what I said last week, which was that the effective way to seek to amend the schedule is to table amendments to clause 1. That is the ruling that I think was accepted by the Committee, and we have been discussing amendments which have been put down to clause 1.
With regard to the other points that the right hon. Gentleman made, I cannot go much further than I have already. It is a complicated matter. I stress to the right hon. Gentleman that I specifically made the point that we are dealing with this Bill alone and that nothing that we have done should be taken as applying to other constitutional Bills or Bills confirming treaties, agreements, and so on.

Mr. Douglas Jay: Further to that point of order, Mr. Weatherill. I do not wish to prolong this procedural debate, but I am puzzled. If the words in the preamble make the schedule unamendable, how can it become amendable during the discussion of clause 1?

The Chairman: I have ruled that clause 1 is amendable. If any of the amendments to that clause were accepted, there would be other consequences.

Mr. J. Grimond: Further to that point of order, Mr. Weatherill. I should like some clarification on this matter. If the amendments that have been tabled, debated and voted upon had been carried, would the Bill have to be withdrawn, because the House of Commons can either reject or accept the Bill, but it cannot amend the schedule, which is the vital part of the Bill? Therefore, I should have thought that if we passed amendments that are amendments to the schedule the Bill would have to be withdrawn. Is that right?

The Chairman: The answer is that any amendments passed by the Committee would be incorporated in the English text of the Bill. The Canadian Parliament would then have to supply a French text of those amendments.

Sir Bernard Braine: I am puzzled—a good many hon. Members are probably puzzled—about why it is not possible in considering legislation that is specifically British legislation, whatever the origin of the schedule, to amend the schedule directly, bearing in mind our responsibilities here for the legislation and the fact that certain of the paragraphs of the schedule were not debated at all in the Canadian Parliament. In other words, we are being asked not merely to rubber-stamp a schedule presented to us in the form of a resolution from the Canadian Parliament but to rubber-stamp a schedule some provisions of which have not been properly discussed in the country of origin. That being so, it seems logical, right and parliamentary for us to have the right to amend the schedule should we so desire. Why cannot we do so?

The Chairman: Because I ruled when we started the Committee proceedings last week that schedule B was a specific and complete document in itself and that the only way in which we could make amendments to the Bill was to amend clause 1.

Mr. J. Enoch Powell: My further point of order arises directly out of the reply that you, Mr. Weatherill, have given to the hon. Member for Essex, South-East (Sir B. Braine). It was most important that you ruled just now that your ruling on the Bill was unique to the Bill since it was from the wording of the preamble to the Bill that you deduced the judgment of which you reminded the House in your reply to the hon. Gentleman.
However, we are in a difficulty despite your disclaimer of a precedent because it is clearly in the interests—or may be in the interests from time to time—of Governments to

ensure that documents can be treated as whole documents, and therefore, not in the ordinary sense, amendable. Indeed, a predecessor of yours in the Chair once did a great service to the House by remaining in the Chair throughout the night when the extent to which the European Communities Bill 1972 was amendable was determined in accordance with its relation to an underlying document that was not cited in the Bill itself.
Therefore, it seems to me that we have a difficulty that in future it would be possible for documents of the character of the Irish Free State constitution to be rendered unamendable by the House and only discussable by the House with difficulty, not by a statement to that effect being embodied in the text of the Bill itself, but by something extraneously known, though referred to in the preamble.
Therefore, I submit that the question of precedent is extremely important and that any way in which you can entrench that ruling may be valuable for the future.

The Chairman: Perhaps the sensible way out of this complicated and difficult problem might be for me to accede to the request made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham), that we discuss the matter further privately, so that we may proceed now with the Bill.

Mr. George Cunningham: I am extremely grateful to you, Mr. Weatherill.

Mr. David Ennals: On a point of order, Mr. Weatherill. You will recall that in Committee last Tuesday there was a vote on amendment No. 17. At that stage I did not have an opportunity of pressing for a vote on new clause 1. It is my intention to press new clause 1 to a Division. I seek your advice on when that will happen. Will it be today at the end of this sitting or at another stage in Committee?

The Chairman: The right hon. Gentleman may have a Division on new clause 1. I cannot say whether it will be today or on another day, but it will be at the end of the debate on the clauses.

Mr. D. N. Campbell-Savours: On a point of order, Mr. Weatherill. This matter has caused me much concern. There have been three major areas of debate on the amendments to the Bill. The first is Quebec's veto. The second is the point raised by the right hon. Member for Down, South (Mr. Powell), about our right to patriate to Canada what the Canadian Parliament has produced and the charter of human rights. The third is the question of native peoples.
In the debates in the Canadian Parliament, Mr. Weatherill, there was just as much controversy surrounding another issue, which has also been drawn to your attention in the form of amendments that I have twice placed for your consideration. I have noticed that on each occasion those amendments have been avoided. They deal with the position of the unborn in Canada. I have no desire to provoke a debate about abortion, but I have repeated both inside and outside the House that if we passed the Bill as it stands, we shall be legislating for abortion in Canada I am trying to prevent us from doing that.
As you will know, Mr. Weatherill, I have drawn the attention of many people to that matter. I ask again whether my amendments can be reconsidered for selection, especially amendment No. 64, which is crucial.


I do not wish to interfere in Canadian legislation. I am simply trying to avoid the Committee taking a decision that, when it is reflected in court decisions, especially in the Supreme Court in Canada, will strike down existing abortion legislation, as happened in 1973 in the United States following the case of Roe v. Wade.

The Chairman: I thank the hon. Gentleman. He knows that I did not select his amendment last week, but promised to give it further consideration. I have given it further consideration, and I regret that I cannot include it in a separate group of amendments today. However, it is perfectly in order for him to discuss the matter in the "clause stand part" debate and that is the time when he should do so.

Mr. Campbell-Savours: Further to that point of order, Mr. Weatherill. Is it not clear from examination of the Bill that this is the only area where Canadian legal opinion maintains that the Bill could lead to a change in the criminal code which, in this case, is section 251 as carried by the Canadian Parliament? If that is so, is there not a clear duty on the Committee to examine this matter, just as the Canadian Parliament tried to examine it in a truncated debate following assurances from the Prime Minister? Despite defections from the Government party and the wholesale support on the Conservative Benches in the Canadian Parliament, the Government in this case decided to leave the matter as it was in the Bill.
Is there not a moral requirement for the Committee to examine this matter, as we shall be held responsible by coming generations in Canada for changing the abortion law in a way which is unacceptable to the Canadian people today?

The Chairman: The hon. Gentleman may be right. That is a question of argument that he must make in the debate. He knows that I have carefully considered the evidence for selecting his amendments, which he kindly brought to my attention. I regret that I could not find it possible to do so. Therefore, I again invite him to keep his remarks until we reach the "clause stand part" debate.

Mr. Campbell-Savours: Further to that point of order, Mr. Weatherill. You say that the matter is a question of argument. It is quite clear from every legal opinion in Canada that the British House of Commons is about to do something which is not acceptable to the majority of the Canadian people. This Parliament is being used by some people in Canada to change Canadian legislation. All I am asking—

The Chairman: Order. As I have already said to the hon. Gentleman, that may be so, but he must make those points in debate. He has the opportunity to do so and will certainly be called in the "clause 1 stand part" debate. No further point of order can arise out of this matter.

Mr. Campbell-Savours: Further to that point of order, Mr. Weatherill. You have said that I can make the point in debate. I believe that the House will be denied the right to express an opinion if the important amendments that I have tabled are excluded from your selection list. My amendments simply allow the Canadian Parliament to make a decision on this matter rather than leaving it to this House of Commons.

The Chairman: Unfortunately, the hon. Gentleman is not the first hon. Member who has been disappointed that his amendment has not been selected. I cannot go beyond what I have already said. The hon. Gentleman must make his points on "clause 1 stand part". No further point of order can arise. I have ruled on it.

Mr. Campbell-Savours: Further to that point of order, Mr. Weatherill—

The Chairman: No, there is no further point of order on that; I have ruled on it.

Mr. Campbell-Savours: On a point of order, Mr. Weatherill—

The Chairman: No, not unless it is a new point of order.

Mr. Campbell-Savours: On a new point of order, Mr. Weatherill. In the light of the arguments currently raging in Canada about the issue that I have already raised in another point of order, will you, Mr. Weatherill, accept a manuscript amendment from me now to the table for consideration to enable the Committee to vote on this extremely important matter?

The Chairman: No. Of course, the hon. Gentleman would be at liberty to call a Division on "clause 1 stand part". That would be the opportunity for him to do so.

Mr. Kevin McNamara: In view of what you have just said, Mr. Weatherill, if my hon. Friend the Member for Workington (Mr. Campbell-Savours) calls a Division on "clause stand part," will not the Division be on the whole of the clause and not just on the particular point which he wishes to make? Is it not the case that what you have made, Mr. Weatherill, is a provisional selection? In view of the strong representation that my hon. Friend has made, and bearing in mind the anxiety of many others on this issue, should you not have the opportunity to reconsider this matter and perhaps call my hon. Friend's amendments?

The Chairman: That is a helpful suggestion, but it has already happened. The hon. Member for Workington (Mr. Campbell-Savours) brought his strong representations to me privately with a great deal of evidence. I considered the matter very carefully. Regretfully, I came to the conclusion that I could not call his amemdments as separate amendments. I have now ruled on that matter and no further point of order on it can arise.

Mr. McNamara: With respect, Mr. Weatherill, the Committee has had rulings from you earlier with regard to the preamble and clause 1. In reply to suggestions made to you by right hon. and hon. Members, you have given an undertaking to consider the matter privately and then to come back and make a statement. Could you, Mr. Weatherill, give the same undertaking on this issue, which many people regard as being of ultimate concern—of life and death—and make a statement on that?

The Chairman: The previous matter was in no way a parallel one. It was of great complication and I believe that it needed additional thought. This matter, however, is clear-cut. I have examined it in great detail and I regret that I cannot go further than I have already stated.

Mr. Campbell-Savours: rose—

The Chairman: I must tell the hon. Member for Workington (Mr. Campbell-Savours) that I am sorry but I cannot take any further points of order on this matter.

Mr. Campbell-Savours: On a point of order, Mr. Weatherill—

The Chairman: Order. I can take no further points of order on this matter.

Mr. Campbell-Savours: Much of the difficulty in which we now find ourselves—certainly I and, I am sure, also those who genuinely believe that this matter should be debated in the House—stems from the fact that we were told that the Bill could not be amended. We were also told that the Canadians would take exception to our seeking to amend it. I believe that hon. Members are being used, because the Canadians, in trying to impress on the British Parliament that we should not amend the Bill because it would be seen as an affront to Canada, have included provisions which, when they are accepted in the courts and the Supreme Court in Canada, will lead to administrative change. In many ways, therefore, this Committee is being held over a barrel.
The Committee has either the right to amend or, at least, the right to debate and to push its amendments to a Division. Therefore, I ask you, Mr. Weatherill, again to reconsider. I ask you again whether you will consider a manuscript amendment in the light of the protests expressed by my hon. Friends. I am sure that others would protest if there were more hon. Members in the Chamber. I see in the Chamber today people who have been involved historically in this lobby since I have been a Member. I call upon them to express their support for what I am doing, because they know that what is being proposed is wrong. We are about to change legislation in Canada. It is not acceptable that that should be done without debate and Division in this place.

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The Chairman: I am very sorry. It is not open to me to say what the courts of Canada are likely to do at some future time. I cannot accept the hon. Gentleman's suggestion because I have already given it very careful consideration. I think that we must now proceed.
We come now to amendment No. 26—

Mr. Campbell-Savours: On a point of order, Mr. Weatherill—

The Chairman: Order. I must tell the hon. Gentleman again that I am not taking any further points of order on this matter.

Mr. Campbell-Savours: On a point of order, Mr. Weatherill—

The Chairman: Order. I am taking no further points of order on this matter.

Mr. Campbell-Savours: On a point of order, Mr. Weatherill—

The Chairman: Order. I must tell the hon. Gentleman that if his point of order is on the same matter again I shall have to ask him to resume his seat.

Mr. Campbell-Savours: rose—

The Chairman: Order. I ask the hon. Gentleman to resume his seat.
We now proceed to amendment No. 26—

Mr. Campbell-Savours: rose—

The Chairman: I have asked the hon. Gentleman kindly to resume his seat. I am taking no further points of order on this matter. I make that absolutely plain to him. If he persists, I shall have to ask him to leave the Chamber.

Mr. Campbell-Savours: On a point of order, Mr. Weatherill. I feel that it is quite clear that many hon. Members firmly believe that the point that I am raising needs to be discussed and a decision—

The Chairman: Order. I am very sorry, but I must now ask the hon. Gentleman if he will kindly leave the Chamber. I am not taking any further points of order on this matter.

Clause 1

CONSTITUTION ACT, 1982 ENACTED

Mr. Michael English: I beg to move amendment No. 26, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 41, of the words "each province" and the insertion of the words "provinces in which threequarters of the population of Canada reside".'.

The Chairman: With this it will be convenient to take amendment No. 58, in page 2, line 14, after 'Act', insert
'subject to the omission in Schedule B, section 41, of the words "each province" and the insertion instead of the words "provinces in which three quarters of the population of Canada, being a majority of all the provinces, reside".'.

Mr. English: It will be apparent to anyone who reads the amendment and the alternative insertion proposed in amendment No. 58 that my object is not to replace one method of amending the constitution of Canada by another, although, for reasons that I shall explain, I have suggested a couple of alternatives.
The point that I wish to discuss and to have the Committee consider is the question of amending the constitution of Canada in certain respects solely by the unanimity of the federal Parliament and all 10 of the provinces of Canada. I do not believe that unanimity is a prescription for anything but disaster in relation to constitutional change in any country. The United States constitution can be amended only with the assent of three-quarters of the States. On one occasion that led to civil war, and a number of amendments to the constitution were passed only because the States which had lost were, disfranchised after the Civil War and forced to assent to the changes before their rights as States were given back. Yet even that is far freer and easier provision than the unanimity provision in the prospective constitution now under consideration.
I have no intention of pressing the amendment to a Division. In my view, it is not for this country to determine how the constitution of Canada should be changed. It is for the Canadians to do that. Nevertheless, I believe that we have in the debate at least the rights that Bagehot attributed to the Queen in the nineteenth century—the right to advise and to warn.
My purpose in moving the amendment is to advise and to warn Canada that a requirement for the complete unanimity of all the provinces is far too severe a limitation and in years to come—it may be next year or in 100 years' time—will cause great difficulty. There will be no way out if the overwhelming majority of the people of Canada decide that they want constitutional change in respect of one of the matters on which the constitution is limited but


one province, perhaps with only 1 or 2 per cent. of the population of Canada, holds out against it. It will be necessary either to undertake a revolutionary and illegal procedure and to change the constitution in a way not set out in the Act, or to return yet again to the House of Commons and another place and require us to repeal section 2 of this Bill which will provide that we cannot legislate for Canada.

Mr. J. Enoch Powell: rose—

Mr. English: Perhaps I may finish my argument on this point before I give way.
I think that the right hon. Member for Down, South (Mr. Powell) will agree that, whatever the Canadian Parliament may be, this is a sovereign Parliament which can amend its own previous legislation. I refer to clause 2 of the Bill, not to any part of the schedule. The only way out would be to take us all back to square one—to the position in which we now are and the difficulty that we seek to cure in relation to section 7 of the 1931 Statute of Westminster.
In my view, the whole problem has been seriously mishandled on both sides of the Atlantic. It is not for me to say—nor do I know—whether Mr. Trudeau can be said to have handled it skilfully in Canada. He certainly aroused the opposition of most of the provinces, but now seems to have the support of most of them, so one may take various views on that, but to go round Canada suggesting, as at one time he did, that we would simply pass this without discussion was wrong and improper. Furthermore, as I have said before, for the Foreign Office over many decades to advise Ministers to give wrong answers on the question of how this should be done and whether it could be done has not helped the proceedings.
However, incorporated in the Bill is a schedule which has been requested and consented to by the Parliament of Canada. As I said previously, so far as I can see, two totally different principles apply to the Bill. One is that under the Statute of Westminster one cannot legislate for Canada without the consent and request of Canada. The other is that one does not need that request and consent precisely because of the existence of section 7 of the 1931 Statute of Westminster. By convention, that is required, but by law, although it may be required for other Commonwealth countries, in this regard Canada is different because Canada wrote that part of the Statute of Westminster differently.
It is important to state, as we all know, that a two-principle Bill would have gone through the House like a dose of salts. At two-principle Bill which repealed section 7 of the Statute of Westminster and incorporated into Canadian law an alternative amending formula for the Canadian constitution could have been passed almost on the nod—certainly in less than a couple of days and, I am sure, in a few hours in a single day. So far as I am aware, there has never been any resistance by any hon. Member to the two principles of providing an amending formula and taking out section 7 of the Statute of Westminster.
What many of us and what I think most provinces of Canada have objected to in the past has been that we were asked to do more than that. We were asked to legislate for Canada and to embody in the supreme law of Canada—its constitution—some things which most of us regard as none of our business.

Mr. J. Enoch Powell: That is right.

Mr. English: That is why, although I sympathise greatly with the Indians, I have not taken up their cause in speech. Those who have sought to do so, for reasons that I well understand, seek to add even more to the schedule than is currently in it—which, in my view, is already rather too much for a British Parliament to pass.
Leaving those points aside, the one thing that we cannot get away with is the issue raised by these amendments. We can ignore everything in the Bill—the charter of rights, the Indians and everything else—but the one thing that we would have to do, in the shortest possible Bill put before us is to decide how the Canadian constitution was to be amended. There is no doubt that it would have been desirable if the federal Parliament of Canada and the provincial Governments at least, and possibly their legislatures, had agreed upon an amending formula. That has not happened. It is regrettable that it has not happened because of the way in which these matters have been conducted in Canada. We are now asked to pass this amending formula at the request and with the consent of the Parliament of Canada and nine out of 10 provinces.
It must be a great misfortune to all on both sides of the Atlantic that the tenth province is the province of Quebec. Therefore, even though it may not be true, it appears that we are passing into law these two formulae—there is more than one—for changing the constitution as a sort of Anglo-Saxon plot. I deeply and sincerely regret, especially after all the hard work that the Quebec Government have put in on behalf of the majority of all the other English-speaking provinces of Canada, that M. Trudeau and the provincial leaders could not have taken the Quebecois with them.
We can say no more—we are probably obliged, morally if not legally, to pass the Bill—but I find it a matter of deep regret, and I hope that the people of Quebec will realise that not all the English speakers here, not all the people who represent the United Kingdom, agree with the way in which these proceedings have been conducted.
Hence the purpose of my amendment. Although it would not give anybody a total veto, it would mean that amendments of this serious character, which under the proposal will require the assent of all ten provinces, would be prevented at least by provinces containing a quarter of the population. There are two such provinces: Ontario and Quebec. That is not sufficient in a federal State because, in theory, three-quarters of the population of Canada could be in four provinces out of ten. In a federal State, that is not appropriate. Hence my other amendment, which mentions that there must be a majority of provinces.
I need not go into detail, because the point at issue is that we are here asked to create a formula which requires unanimity of the provinces in certain respects. It is a proceeding which we must reprobate in moral terms, because we are asked to do so at the request of nine only out of ten provinces. We are asked to entrench the unanimity of the provinces in certain respects into Canadian constitutional law, yet we are asked to do so not by ten provinces but by only nine. It seems to me that the moral basis for that is, to say the least, fragile.
I propose to give only one example, but let us consider what section 41 of schedule B says. It follows the general procedure set out in Section 38:
An amendment to the Constitution of Canada may be made
following
resolutions of the Senate and House of Commons; and resolutions of the legislative assemblies of at least two-thirds of


the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent. of the population of all the provinces.
That is the general formula.
The particular formula with which I am concerned is in section 41:
An amendment to the Constitution of Canada in relation to the following matters may be made … only where authorised by resolutions of the Senate and House of Commons and of the legislative assembly of each province.
Those matters are:
the office of the Queen, the Governor General and the Lieutenant Governor of a province … the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time that this part comes into force"—
subject to another section—
the use of the English or the French language … the composition of the Supreme Court of Canada; and … an amendment to this Part.
That is the amending formulae themselves.
5.15 pm
I will illustrate that simply with the very first of those things—
the office of the Queen".
There is in existence in international law, binding on the States which are parties to it, a United Nations convention on the elimination of all forms of discrimination against women. Canada ratified it on 10 December 1981. Canada is now bound by it in international law and cannot alter it. I congratulate the hon. Member for Down, South (Mr. Powell) on his amendment which is between my two amendments but which has not been selected. He makes the relevant point that the statute itself—the schedule passed by the Canadian Parliament—uses the words
the office of the Queen
in this formula for the amendment of the constitution.
Canada is now bound, however, in international law, among other things, to legislate to ensure that
women, on equal terms with men
have
the right … To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of Government.
There are various other provisions in the convention, which are relevant to the same point.
For example, the point made in my Succession to the Crown Bill, as you know, Mr. Weatherill, was that the eldest child in each generation should inherit, irrespective of sex. Canada is now bound, of its own volition, under international law, to embody that principle at some time into its law. In other words, it must, at some time, legislate in order to comply with the convention. It does not much matter if Princess Diana has a son; but, if she has a daughter, Canada will be forced to legislate at some stage to ensure that ultimately that daughter is heir to the Throne. Whatever we do in this country, we have the strange spectre of a possible Queen of Canada reigning while her brother is King of the United Kingdom and Northern Ireland.

Mr. J. Enoch Powell: It can happen.

Mr. English: It can happen, as the right hon. Gentleman, who is an expert on these matters, points out.
Here we have the immediate possibility of legislation on
the office of the Queen".
I might add that one of the few things not in the long schedule is any clarification of one of the deepest

obscurities of Canadian constitutional law—how one can ratify a treaty. In this case it would seem that the ratification could probably never now be given unless it had the assent—it was given before the Bill was passed—not only of the Canadian federal Government but of the Governments of all ten of the provinces. However, the ratification took place before this Bill is passed and there is now a distinct possibility that one of the first things that Canada may have to do is to pass some legislation that directly involves section 41 of schedule B.
I have used that matter as an illustration, but it shows the complexities that can arise. I do not think that we should attempt to pass an amending formula for Canada without its request and consent. The reason for moving the amendment today is to show how difficult it may be in future for Canada if unanimous consent of every one of ten provinces—who knows, it may be more than ten at some future date—is required.
When the United States passed a provision requiring assent from three-quarters of the states, there were only 13 states. There are now 50. Canada, geographically one of the largest nations on earth, might have more than 10 provinces in future. Large areas of Canada could be turned into new provinces should the Canadians so wish.
It appears inadvisable to have a provision for absolute unanimity. In this we have no greater rights than the Queen is said to have with her Government in either Canada or here. We may advise or warn. I advise the Canadians to think again. They have the time. They can request and consent to a change in the Bill without delaying it. We can include an amendment in this Chamber or in another place. It would be better if that were done. Otherwise, trouble is being stored up for the future.

Mr. J. Enoch Powell: The ingenuity of mind of the hon. Member for Nottingham, West (Mr. English) has opened up many vast perspectives within the apparent narrow compass of his amendment. I am sorry that too soon, and sotto voce, I expressed dissent to his proposition as to possible amending legislation by the House to the Bill even after it has been passed. I agree that there is nothing which prevents the sovereign Parliament from repealing the Statute of Westminster if it wants to, but the only result would be that we should find ourselves in a vacuum of oar own creation—a fairyland limited to ourselves in which we could live our own unreal existence.
However, practically and politically—this does not contradict the hon. Gentleman's argument—once the Bill is passed, whatever difficulties arise in Canada over this constitution, or anything else, the House will not legislate again for Canada. That is as politically certain as anything can be.

Mr. English: What if Canada asked us to to do so?

Mr. Powell: I am prepared to add, even if Canada asked us to, since the important adverb "politically", which in the last resort governs all that we do in Canada, was contained in my sentence.
There are two practical questions—one broad, and a narrower one—to which the amendment obliges us to direct our attention. The first is whether the schedule, covering this part of the Canadian constitution, can subsequently be amended by the Canadian Parliament. There is a wider and a narrower aspect to that. On the wider aspect, it seems to me that the answer "Yes" is given by implication, at any rate, by section 49 of the schedule.
Within 15 years—which might, indeed, be next year—a constitutional conference will be convened to review the provisions of this part of the Bill which governs the amendment of the Bill. I find it difficult to make sense of that unless the Canadians themselves envisage that their Parliament would be able to alter the conditions for altering their constitution. That seems to me to be highly rational and implied on the face of the Bill. It gives the answer pro tanto to one of the questions that I have hitherto vainly addressed to the Government: is there anything in what we are doing that the Parliament of Canada cannot undo or amend? It seems to me—and there is other evidence to this effect—that there is nothing that it cannot undo or amend, including part V, which says, or may say, how alone it can amend.
The second and narrower point is this: "Is that what part V says?" Part V begins by saying that an amendment
may be made by proclamation".
So it may. But neither that section, nor, as far as I can see, any other section in part V is so drafted as to exclude any other method of making an amendment to the constitution. It appears on the drafting that even without amending part V as a result, or otherwise than as a result, of the conference convened under section 49 there are other ways of amending the constitution. If that is so, that is not an unimportant result, especially to those who have been led to think that either we are entrenching the contents of the constitution, or at any rate, entrenching a unique method of amending it. On the drafting, it appears that we are not doing that.
The amendment relates to section 41. The word "only" is limited to the modality of amendment by proclamation. It does not say "Amendment may only be made by proclamation in relation to the following matters." It says that in relation to the following matters it may be made by proclamation "only" under the conditions specified in that paragraph.

Sir Bernard Braine: It is even worse than that because we are legislating in a way which could lead to extinguishing basic rights for certain communities in Canada.

Mr. Powell: It is certainly important, because unless we understand what this part does or does not purport we might be party to deceiving persons in Canada or elsewhere into imagining that things are entrenched and unamendable, or only amendable in certain ways, which in reality can be amended in other ways.
By now the Committee is familiar with the condition of nescience, self-imposed upon the Government by the terms in which they view the Bill. I am appealing to the Minister to venture out beyond the boundaries of his adopted nescience, at any rate so far as to confirm the drafting and what it means. Otherwise, the Government are in the difficult position not only of putting before the Committee a document which they say the House cannot amend—and they do not think that the House should amend it—but of saying that they do not understand what it means. I hope that that is not the Government's position. I hope that the Government are not saying "You cannot amend this document and if you ask us what it means we will not tell you."
I am having another try. I am asking the Minister if he will please indicate whether he is advised that I am

mistaken in thinking that part V does not prescribe one, and only one, lawful and constitutional way of amending the constitution, but deals only with amendment by proclamation and a method which may—and therefore may not—be adopted for amendment.

The Minister of State, Foreign and Commonwealth Office (Mr. Richard Luce): First, I shall take up a point made by the hon. Member for Nottingham, West (Mr. English) about Foreign Office advisers giving wrong advice to Ministers. The hon. Member feels strongly about the constitution, Governments and their systems. I hope that he will agree that Ministers carry responsibility for the advice that they receive. Ministers are accountable to the House. They take the decisions and try to determine whether the advice is right or wrong. They take the responsibility.
5.30 pm
The hon. Member for Nottingham, West has spoken to the two amendments that concern the procedures for amending the new constitution of Canada. Part V sets out the amending formula agreed to by nine out of the 10 provinces at a special conference that was held in early November. I do not need to reiterate the Government's view about what we mean by "substantial measure of support", because we have had that debate. We feel that that fulfils the request and consent provisions set out in the Statute of Westminster 1931.
The whole of part V is the fruit of lengthy deliberations in Canada, and is acceptable to all those who were signatories to the agreement following the first Ministers' conference in November. I am anxious not to bore the Committee by repeating myself, but the right hon. Member for Down, South (Mr. Powell) is enticing me to be a little more interesting than I may have been before. However, we must stick to the point of principle—the nature and relevance of the request and consent convention set out in the Statute of Westminster.
It would intrude into matters which are properly the concern of Canadians if the British Parliament were to seek to modify the procedures for amendment of the new constitution that have been worked out in Canada. Amendments Nos. 26 and 58 seek to cut down the requirements of unanimity in clause 41 and that would be in direct contravention to the request and consent convention. To stick out my neck a little further, the hon. Member for Nottingham, West expressed deep concern that Canada had not consented, and was not part of this.

Mr. English: Quebec.

Mr. Luce: I apologise to the hon. Gentleman—Quebec. We debated this matter on Second Reading two weeks ago. We all feel that it is a matter of great regret that not all the provinces, including Quebec, feel able to accept the request and consent provision.
We all hope that in due course it will be possible for Quebec and the rest of Canada—under the leadership of the federal Government—to reach agreement, but it is not for the British Government to express any further view, and we must abide by the request and consent provisions.
I am sorry if I am not being helpful to the right hon. Member for Down, South who asked whether I could give some further interpretations. If I can be helpful to him, I shall be. It might be easier if I were given more time, but I shall seek an opportunity in which to reply.
I must ask the House to reject the two amendments.

Mr. English: My amendment has served its purpose in instituting this short debate.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Clinton Davis: I beg to move amendment No. 27, in page 2, line 14, after 'Act', insert
'subject to the substitution in Schedule B, for section 49 of the following words—
49.— (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces and (in so far as constitutional matters arise that directly or indirectly affect the aboriginal peoples of Canada) representatives of the aboriginal peoples of Canada duly authorised in accordance with subsection (2) shall be convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part;
(2)(a) The representatives of the aboriginal peoples of Canada at the conference convened under subsection (1) shall be—

(i) in the case of Indians, those duly authorised to take part in the conference and to give such assent by and who are appointed by The First Nations Assembly of Canada at a special meeting summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, those duly authorised to take part in the conference and to give such assent by and who are appointed by a majority of authorised representatives of the class or category of such peoples at special meetings summoned for the purpose;
(b) In this section and in Schedule 2 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".'.

The Deputy Chairman (Mr. Ernest Armstrong): With this it will be convenient to take the following amendments: No. 29, in page 2, line 14, after 'Act', insert Amendments requiring assent of aboriginal peoples of Canada.
49B.—(1) No amendment may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes to

(a) affect any aboriginal treaty rights or other rights or freedoms of the aboriginal peoples of Canada; or
(b) repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to

(i) in the case of Indians, by representatives duly authorised to give such assent from time to time and by and who are appointed by The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, by representatives duly authorised to give such assent from time to time by and who are appointed by a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose. Provided that in case of doubt as to whether an amendment proposed under this Part would have the effect referred to in paragraphs (a) and (b) above the matter shall be referred for determination by a court or tribunal of competent jurisdiction.
(2) In this section 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".'.
No. 40, in page 2, line 14, after 'Act', insert
'subject to the insertion, in Schedule B after section 49, of a section (Further constitutional conference) as follows—

Further Constitutional Conference

"49A. (1) A constitutional conference composed of the Prime Minister of Canada and the duly authorised representatives respectively of the aboriginal peoples of Canada shall be

convened by the Prime Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part in its application to the said peoples of Canada.

(2) For the purposes of this section, the duly authorised representatives of the aboriginal peoples of Canada shall be

(i) in the case of Indians, those duly authorised to attend the conference by The First Nations Assembly of Canada at a special meeting summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada, respectively, those duly authorised to attend the conference by a majority of authorised representatives of the appropriate class or category of such peoples at special meetings summoned for the purpose.

(3) In this section 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".".

No. 41, in page 2, line 14, after 'Act' , insert
'subject to the insertion in Schedule B after section 49. of a section (Amendments requiring assent of aboriginal peoples of Canada) as follows—

"Amendments requiring assent of aboriginal peoples of Canada

49B. (1) Notwithstanding any provision in this Part, no amendment may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes

(a) to affect any aboriginal treaty rights or other right s or freedoms of the aboriginal peoples of Canada; or
(b) to repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to

(i) in the case of Indians, by representatives duly authorised to give such assent from time to time by, and who are appointed by, The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples cf Canada respectively, by representatives duly authorised to give such assent from time to time by, and who are appointed, by a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose.

(2) In this section 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".'.

No. 61, in page 2, line 14, after 'Act' , insert
'subject to the omission in Schedule B, section 49, of the word "within".'.

Mr. Davis: I thought for a moment that the right hon. Member for Down, South (Mr. Powell) would perform the greatest miracle since Moses struck the rock. Indeed, perhaps he has, because the Minister has said that he may be a little more forthcoming and a little less reticent than before. We must be thankful for small mercies. I was beginning to wonder whether his journey to the Committee for the debate was necessary. Perhaps it is, after all.
The amendments standing in my name and that of my right hon. and hon. Friends seek to probe the proposals for the constitutional conferences contained in sections 37 and 49, and to consider the impact of section 54, which repeals part IV, which in turn comprises section 37. I hope that the Minister will be less reticent than he has been when answering some of the points raised earlier in this important debate. The amendments deal specifically with the second constitutional conference, but are, in a sense, integrally related to the way in which the first constitutional conference will operate. Essentially, the issues are inseparable.
I understand that the Indian peoples strongly believe that there will be an interval of about 15 years between the two conferences and that they will have no status at the second conference. Those concerns compound their anxiety about the integrity of the constitutional proposals. They claim that they are entitled to a continuing dialogue because their rights, lands and culture are at issue. The anxieties that I have frequently referred to have been exacerbated because the Indian peoples were not involved in the formal consultations that preceded the presentation of the proposals. No explanation has been given for that serious omission. In their representations to hon. Members they claim that the omission constitutes a breach of their constitutional rights, which are adumbrated in their treaty, and a breach of other rights, such as the right to be consulted. That omission adds—as I well know from my recent visit—to the Indians' scepticism about their ability to influence Government policy.
The Department of Indian Affairs commissioned a survey on Indian conditions in 1980. The document is interesting and I congratulate the Department of Indian Affairs on it and the Federal Government on enabling its commission. The document emphasises the points that I have made. The summary dealing with political conditions stated, on the basis of interviews, that there had been major and positive changes in the Indian political situation, notably in the increased independence and administrative capacity of Indian band councils, Indian political awareness and influence, and Indian representation at all levels of Government, through the development of Indian political associations. At the same time, there was scepticism about the Indians' ability truly to influence Government policies. That is the point that I was making.
The summary also stated that some people feel that current Government-Indian relations are outmoded and negatively affect local self-reliance, political accountability and development. This is a remarkable document and it is to the manifest credit of the federal Government that it has commissioned and published such a detailed report on the conditions of Indians over a wide spectrum.
Having regard to treaty rights, it is strange that at the first conference the aboriginal peoples are not to be present as of right but are mere invitees. One simply does not know the limit of the contribution that they will make or are expected to make. Their position is vastly different from and inferior to the position of the provincial Prime Ministers and the Prime Minister of Canada. As far as one can see, the role that they are expected to perform is merely to participate in the consultations that directly concern them. What directly concerns them is to be determined by others, not by them.
One of my reasons for inserting the words "directly or indirectly" in the fifth line in my amendment was specifically to deal with that question. Despite the posture that the Minister has adopted, may I ask him to tell us what the term "directly" means? How can that position be an equitable one when it is the treaty and other rights of the aboriginal peoples that are at stake? Lord Denning has said that the conference
settles exactly what their rights are".
How can it be equitable that they should be given so inferior a status at the conference? Their position should be clarified on a matter that is fundamental to them. Is the Indians' fate to be determined—perhaps dictated—by

those very provincial Prime Ministers who not long ago were responsible for removing what is now section 35, and who will themselves control the amending formula?
Another major matter of concern is that the First Accord originally envisaged that the conference would be held annually—the continuing dialogue to which I have alluded. Under section 54 the first conference will cease to exist one year after the Act comes into force. Therefore, even if it were contemplated—and there is no such provision in section 49—that the aboriginal peoples were to have some role in the second constitutional conference, is it to be expected that they should wait for 15 years to know their ultimate fate? What will be the position if their rights are not identified and defined within the time allotted for the first conference? What part will they have in framing the decisions? For how long are they expected to be present at the discussions? What will be included on the agenda? Who will decide that very issue? Who will determine what "directly" affects them? If they feel that they are being denied any satisfactory consideration, or if decisions are made that they consider to be contrary to their interests, what right of appeal will they enjoy?
This is a matter of specific importance, for it has to be remembered that in the constitution that we have before us the courts are provided with no guidance as to the interpretation of aboriginal and treaty rights. How is it possible, without that guidance, for the courts to be able to consider those matters and to administer justice satisfactorily? Is it not possible, moreover, that the courts may have to give effect to legislation that simply overrides aboriginal rights, title and treaties? If that is the position, it is one that the Indian peoples would be entitled to look upon with very great anxiety.
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The whole process of identifying and defining the rights of the Indian peoples is deadly serious for them. It is incumbent upon the Canadian Federal Government to provide far more reassurances on the matter than have been provided hitherto.
I have asked these questions—because I know what the Minister's position will be—primarily in the hope that between now and Third Reading—or, if not, between now and the time when the Bill comes to be considered in another place—the Canadian federal authorities will recognise that it is in their own interests to be able to allay these anxieties.
I have said—as has every hon. Member who has participated in the debate—that we wish the Canadian people well. We want to see the patriation of the constitution succeed. We want to be rid of the quirk of history with which we are faced today in having to deliberate at all on these matters. It must be recognised that there are real doubts, and I can only hope that something will be said in answer to these points within the time that I have stated.
With regard to the second conference, there is an astonishing provision, which does not even include reference to the aboriginal peoples. They are in no way assured—as by section 37—of a seat at the conference. It is not even contemplated that they should be close to the table, let alone sitting at it. I ask the Minister to tell the House why they have no such assurance.
Is it to be assumed that by the time, the second constitutional conference takes place, the whole issue of aboriginal rights will have been consigned to the


wastepaper basket, or do the Canadian Government feel that these questions will have been satisfactorily resolved? If so, on what basis do they come to that conclusion, having regard to the qualifications and doubts that I have already mentioned concerning the first constitutional conference and the difficulties that arise in relation to that?
I suppose that it is possible—this is the fear of the Indian peoples—that the amending formula will have been used in order to produce new amendments to the constitution, with no aboriginal involvement, consultation or consent. It is because of that anxiety that we have proposed in our amendments some ways of mitigating, if not of overcoming, those difficulties. They are ways that would provide the aboriginal peoples with a right to attend the subsequent conference and to be involved and consulted properly in matters that directly or indirectly affect them. They are rights that they should clearly have, not simply at the second conference but at the first conference, too. The amendments would provide a way of enabling a procedure to obtain for the selection of the representatives of aboriginal peoples—a selection that should be made by them, not something that is imposed on them. Amendment No. 29 provides a procedure for obtaining their assent to amendments of the constitution, as defined in various parts of the proposals to amend section 49b.
Why are these matters fundamental in the eyes of the Indians? In my opinion, it is because they want to see developed at the constitutional conferences that which they have no faith exists at present—a more comprehensive understanding, feeling for and appreciation of what they are, their history, culture, religion and way of life. They insist that, to achieve that, there must be a reassessment of the promises that have been made to provide adequate education facilities, a reassessment of the federal Government's obligations relating to the health and welfare of native peoples, and of the Crown's administration of Indian lands. In the representations that the Indian peoples have made to many hon. Members of this House they say that they are deeply concerned about the federal Government's honouring of the terms and spirit of the treaties—a concern that is expressed against a background in many of the provinces of appalling housing, social services, education facilities, and alcoholism, all of which are manifestly evidenced in the Canadian Government's survey of Indian conditions. The fact that the federal Government's expenditure for Indians increased 14 per cent. per capita in real terms between 1970–71 and 1978–79, compared with 128 per cent. per capita growth in other federal social programmes, illustrates what I mean when I talk about the Indian's concern.
Harold Cardinal, a notable Indian leader, said that the mistake made by the aboriginal peoples in the past was that they "trusted too much". It is, he said, the duty of each succeeding generation to ensure that the sacred obligations of the treaties are respected. These peoples know only too well that in some Indian reserves there are vast mineral, oil and gas deposits that are vulnerable to compulsory legislation. They know that their way of life cannot survive without an adequate economic base, of which the land claims represent an essential part. That they are lacking in trust and confidence is clear beyond peradventure. They sense that, after patriation, federal Government policy, by the use of the amending formula,

can enable the federal Government to acquire lands or transfer reserves currently under federal responsibility to the Provinces. That they fear deeply.
Thus, they feel that there is a need for assurances that there will be no derogation from the obligations of the Crown in Canada by the misuse of the amending formula. It is in those circumstances that we put forward amendment No. 29, which to some extent would provide those assurances and protections, to which the Indian peoples feel that they are entitled, if they are to repose their faith in these constitutional changes.
We may not have got the phraseology or terminology right in drafting our amendments. That is quite possible. However, I have no intention of dividing the Committee on the amendments, although other hon. Members may wish to do so. If so, I shall not prevent them from doing so by withdrawing the amendments. The advice that I give my hon. Friends is not to divide, as I have said on a number of occasions. I want to focus attention on the representations that have been made to us out of deep concern and the utmost genuineness of spirit. These people have not been given a fair deal over the years. Their position has unquestionably been improved in more recent times, but there is still a residue of mistrust. It is that residue of mistrust which it would be wise for the federal authorities to do their best to expunge. I hope that that will be a useful result of our debates on these important matters.

Sir Bernard Braine: I wholeheartedly support the hon. Member for Hackney, Central (Mr. Davis) in what he has been saying. I speak to the first of the amendments standing in my name and in that of the hon. Member for Walsall, South (Mr. George).
Section 49, as the Bill stands, is the final section of part V of schedule B. Part V relates to the procedure for amending the new constitution of Canada. Under this section, a constitutional conference, composed of the Prime Minister of Canada and the First Ministers of the 10 provinces, will be convened by the Prime Minister within 15 years after part V comes into force to review its provisions; that is to say, the procedure for amending the constitution. By the time the constitutional conference takes place under section 49, there will already have been a previous constitutional conference under section 37 of part IV of schedule B. The Committee discussed section 37 last week. There was a Division and our amendment was rejected.
Thus, the situation now is that the first constitutional conference will take place in accordance with section 37. It will take place within one year of part IV coming into force, and it will be repealed under section 54 as soon as it has taken place. By the time that section 49 is implemented, the first conference will have receded into the distant past, never to be repeated. I shall therefore remind the Committee of the kind of "once-for-all" constitutional conference that will have taken place under the ephemeral section 37. This will have been conducted by the Prime Minister of Canada and the 10 provincial Premiers alone. In accordance with section 37(2), they will have identified and defined the rights of the native peoples of Canada to be included in the Canadian constitution. It is true that representatives of the native peoples will have been invited to participate in the discussions, but it will not have escaped the Committee


that there is no provision for native interests to be represented in the further constitutional conference which takes place under section 49, up to 14 years later.
I therefore ask the Committee to consider the following questions. By the time section 49 is implemented, will there be any native interests for the then Prime Minister and 10 Premiers to take into account? How will native rights have been identified and defined on that sole, fleeting occasion upon which this can happen under the constitution that we are considering—that is, within the one year of the Act coming into force? What confidence can we expect the native peoples of Canada to have that their rights will have been properly recognised on the occasion of the first conference, on that single occasion when they respond—if they do—to the Prime Minister's invitation, when they participate—should they deem it in their interests to do so—in the discussions that he is having with the provincial Premiers to decide the future of their communities?
While there has been some expression of confidence during our debates on the Bill that the natives peoples of Canada need have no fear that their rights will be ignored during the first conference, I have not so far heard any of my right hon. or hon. Friends on the Front Bench expressing clearly their complete confidence that the 11 Canadian Governments will uphold the treaty and aboriginal rights so forcefully and eloquently expressed by the Master of the Rolls on 28 January.
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The Government appear to be relying—we had a repeat performance this afternoon by my hon. Friend the Minister of State—on the proposition that what goes on between Canadian Ministers and the native minorities does not concern the British Government and should not concern the British Parliament. If I am wrong about that, I am sure that my hon. Friend will correct me. I have not heard my right hon. Friend the Lord Privy Seal assure the Committee that the Government are confident that the 11 Canadian Governments will give statutory force to Lord Denning's interpretation of the royal proclamation and the treaties with the Crown when they come to define and identify native rights during the next 12 months.
As I recall, only the hon. Member for Inverness (Mr. Johnston), who is not present this afternoon, was prepared to express any confidence during Second Reading that the Canadian Government will live up to their obligations under the international covenant on civil and political rights. It is not a question of obligations under the Crown or whether the Crown is no longer the Crown of England but the Crown of Canada. We are talking about a new position where our obligations to minorities here, in Canada or anywhere else are governed by a convention solemnly entered into by all civilised nations. There has been precious little reference to that during the debate.
The hon. Member for Inverness, with the fairness that the Committee has come to expect of him, quoted a statement by the Saskatchewan Indians, setting out their fears that the constitutional status of the Indian nations would be eliminated within five years, that their lands would be expropriated, their hunting, trapping and fishing rights reduced and extinguished and their languages systematically eradicated. He quoted the fears that they expressed to him and, with his customary sensitivity to any

group or person who comes to him with a grievance, conceded that the Indians genuinely harboured those fears. However, he concluded that he found it impossible to believe that such fears were well-founded. He argued that Canada has a good record on human rights. Although the Indians might have difficulties, he believed it unlikely that any Canadian Parliament or any future Canadian Government would act in a way that most Indians fear is possible.
For a moment—a fleeting moment only—responsibility for this matter rests with this Parliament. The Bill has not yet passed. We should, therefore, examine closely the fears expressed to the hon. Member for Inverness and to other hon. Members and decide for ourselves whether they are groundless. We should consider closely what we already know about the matter. There is irrefutable evidence—I gave it to the House previously—of a strong resistance by the provincial Governments to allowing the native peoples any guarantees in the constitution that would override the legislative powers of the 11 Canadian legislatures. That evidence is important, because both in the first year conference and in the conference that is to take place within 15 years, 10 of the 11 First Ministers who will decide on the future constitutional position of the native peoples will be the provincial Premiers.
What of the Canadian federal Government and Parliament? Nothing, irrespective of provincial desires, can be done to alter the constitution if the federal Parliament forbids it. We should ask ourselves two questions. First, what is the record of successive Canadian Parliaments and federal Governments on aboriginal and treaty rights? Secondly, what are the present Canadian Government's policies on native rights?
I turn first to the sorry story of the extinguishment of aboriginal and treaty rights. If any one wishes to read it, the story is there. My case for saying that section 49 to schedule B should be amended relies as much on the existing legislation and on the attempts of Canadian courts to interpret it as upon an examination of the present intentions of the 11 Canadian Parliaments and Governments on the unsatisfactory nature of the legislation before us today. Not only the hon. Member for Inverness but other hon. Members may, understandably, be unaware of how native rights, so recently pronounced solemn and binding in our Court of Appeal, have been set aside by the Canadian Parliaments and how Canadian judges have been powerless to protect them.
For all who are prepared to listen to the story, it is quite fascinating. In 1964, and Indian named Michael Sikyea appealed against a conviction under the Migratory Birds Convention Act 1952 for shooting a wild duck. His defence was that he was entitled, under his treaty with the Crown, to do so. Mr. Sikyea was convicted by a magistrate. His appeal to the court of first instance was upheld and he was acquitted by Mr. Justice Sissons. The Court of Appeal of the Northwest Territories subsequently overruled Mr. Justice Sissons on the ground that the Migratory Birds Convention Act 1952 was valid legislation and abrogated Mr. Sikyea's treaty rights.
The Supreme Court of Canada unanimously upheld the decision of the Court of Appeal on 6 October 1964. In his decision, which was to be overruled by the Appeal Court, Mr. Justice Sissons quoted the words of Mr. Justice Gwynne of the Supreme Court in an earlier case of 1902:
Indians still have their ancient hunting rights unless the proclamation of 1763 and the pledge of the Crown therein …


are to be considered now to be a dead letter having no force or effect whatever: and unless the grave and solemn proceedings which ever since the issue of the proclamation until the present time have been pursued in practice upon the Crown entering into treaties with the Indians for the cession or purchase of their lands are to be regarded now as a delusive mockery.
Mr. Justice Sissons, commenting upon the treaty that applied to Mr. Sikyea—treaty number 11—which was
made and concluded in 1921 between His Most Gracious Majesty George V and the Slave, Dogrib, Loucheux, Hare and other Indians, inhabitants of the territory
had this to say in amplification of the observation made by Mr. Justice Gwynne 62 years before:
The solemn proceedings surrounding treaty 11 and the pledge given by the Crown and incorporated in the treaty would indeed be delusive mockeries and deceitful in the highest degree if the Migratory Birds Convention, made just five years previously, had curtailed the hunting rights of the Indians.
Despite those outspoken words, the Court of Appeal had no choice but to uphold the magistrate's decision and convict Mr. Sikyea. However, it did so not without foreboding. Mark well the words of Mr. Justice Johnson, who spoke for the appeal judges who were obliged to reach that conclusion:
It is, I think, quite clear that the rights given to the Indians by their treaties as they apply to migratory birds have been taken away by this Act and its Regulations. How are we to explain this apparent breach of faith on the part of the government, for I cannot think it can be described in any other terms?
This cannot be described as a minor or insignificant curtailment of these treaty rights, for game birds have always been a most plentiful, a most reliable and a readily obtainable food in large areas of Canada. I cannot believe that the Government of Canada realise that in implementing the Convention they were at the same time breaching the treaties that they had made with the Indians. It is much more likely that these obligations under the treaties were overlooked—a case of the left hand having forgotten what the right hand had done.
Those hon. Members who think that under my guidance the Committtee is descending to trivialities by considering the fate of an Indian convicted for shooting a duck out of season should ponder the words of the Saskatchewan Indians, which the hon. Member for Inverness quoted on Second Reading. Their fears were that under the present policies of the Canadian Government, not only would their lands be expropriated and their languages eradicated, but also that the very means of life itself—their hunting, trapping and fishing rights—would be extinguished.
These are not baseless fears. The Indian chiefs knew full well what the Canadian courts had decided in the case of Regina v. Sikyea. If hunting rights conferred by solemn treaty could be extinguished—one could say, almost in a fit of absence of mind—so could other rights, including their right to land and their right to preserve their language, culture and separate identity. Indeed, Regina v. Sikyea was not an isolated incident. The legislation that led the Supreme Court to confirm Mr. Sikyea's conviction was once again shown to apply, this time to overlay the provisions of an earlier treaty—the treaty of 10 July 1827 with the Chippewa Indians of Ontario. The Committee may wish to reflect that this treaty pre-dated the creation of the Dominion by some 40 years. The obligations under that treaty were at that time clearly and exclusively the obligations of the Crown of England.
Before pursuing this point, I should tell the Committee in passing that the Government have put us in some difficulty. I have argued this before and I must do so again. We still do not have the benefit of a final decision of the Appeal Court of the other place on the complex questions that arise out of Crown obligations. We do not have the benefit of that decision because, no doubt for reasons

touching upon the relations with the Government of Canada, the Government are bent on riding roughshod over the legal process.
Had my right hon. Friends the Lord Privy Seal and the Leader of the House not been so eager to act hastily at the behest of the Canadian Government, we should have had final guidance on this important aspect of the Canadian constitution from the highest court in the land. Why the hurry? What was the necessity? We could have waited a few days or a week or two for guidance from the highest court in the land, but the Bill is being pushed through the House and we are, therefore, faced with these difficulties.
As it is, we must apply a political judgment to how the obligations of the Crown, affirmed in the Royal Proclamation and the Indian treaties, have been complied with on the advice of the Crown's Ministers. Whatever the position of the Crown in law, under section 91(24) of the British North America Act 1867, the United Kingdom Parliament handed responsibility for Indians and land reserved for Indians in trust to the Dominion Parliament.
I submit that the considered pronouncements of Canadian judges that I have quoted have clearly established that treaty obligations entered into by the Crown on the advice of Canadian Ministers have been treated in a fashion described judicially as a "delusive mockery", "deceitful in the highest degree" and "an apparent breach of faith".
The case that resulted in the abrogation of a right under the 1827 treaty with the Chippewa Indians of Ottawa concerned a similar charge and was finally decided shortly after the case of Regina v. Sikyea, to which I referred earlier. This was the case of Regina v. George in which the final decision was reached by the Supreme Court of Canada, with the precedent of the Sikyea case before it. The court's conclusion, in which it referred specifically to the judgment of Mr. Justice Johnson in Regina v. Sikyea, anticipated the judgment of the single dissenting judge, Mr. Justice Cartwright. He said:
The questions of law decided by Johnson, Justice of Appeal (and therefore by this Court since it adopted his reasons as well as his conclusion) in so far as they are relevant to the case at bar were (i) that it is within the power of Parliament to abrogate the rights of Indians to hunt whether arising from treaty or under the Proclamation of 1763 or from user from time immemorial and (ii) that on its true construction the Migratory Birds Convention Act shows that it was the intention of Parliament to prohibit Indians from hunting during the closed season subject only to the exceptions in their favour set out in the Act.
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Mr. Justice Cartwright strove to identify a reason in law why the defendant's treaty rights should not be abrogated by the Canadian Parliament's legislation. Significantly, he said:
We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty. Johnson, Justice of Appeal, with obvious regret, felt bound to hold that Parliament had taken away those rights, but I am not satisfied that on its true construction section 87 of the Indian Act shews that Parliament was careful to preserve them.
Mr. Justice Cartwright ways, however, unable to persuade his fellow judges that the Canadian Parliament had been careful to do any such thing or that the relevant section of the Indian Act made the provisions of the Migratory Birds Convention Act subordinate to the treaty of 1827.
Mr. Justice Cartwright's five fellow judges concurred that it was not the purpose of that section of the Indian Act to make any legislation of the Parliament of Canada subject to the terms of any treaty.
To show that it is not only the right to hunt under the treaties that has been extinguished by legislation of the Canadian Parliament, I shall mention briefly the now famous decision in the case of Hamlet of Baker Lake v. The Minister of Indian Affairs. That case concerned aboriginal land rights and is of particular relevance to the amendment proposed to section 49 in schedule B. It is also a recent case. It was decided in 1979.
The case concerned the Inuit or Eskimo of the Hamlet of Baker Lake in the North-West Territories. These people complained to the Canadian courts in 1979 that certain mining activities were an unlawful invasion of their aboriginal title. Mr. Justice Mahoney ruled against them on the grounds that their aboriginal title had been extinguished by the Territorial Lands Act 1950. In his decision, the judge made a remarkable and valuable comment on the legislation that had obliged him to reach his decision. Referring to the Minister and certain mining companies joined in the action, he said:
The defendants argue that the removal by Parliament of the earlier express recognition of unextinguished Indian title is to be seen as an expression of its intention to extinguish aboriginal title. As part of my historical research, I referred to Parliamentary Reports pertinent to the enactment of the Territorial Lands Act.
He observed that the debate on all stages of the Bill occupied a mere six-and-a-quarter pages of the Official Report, and went on to say:
The word 'Indian' appears only where the sponsoring Minister stated that the bill did not apply to lands under the Indian Act. The word 'Indian' does not otherwise appear in the report, and the words 'Eskimo', 'Inuit' or 'aborigine' do not appear at all. Debate in the Senate was considerably less extensive. While I cannot have regard to anything said in either House in interpreting the statute, it is, I think, fair to remark the irony implicit in the idea that such a basic right, particularly vested in certain people, then helpless to look after their own interests over whom Parliament had exclusive legislative competence, was, in 1950, so casually extinguished. Without regard to what was intended or achieved, it is an historic fact, of which I am entitled to take judicial notice, that, in enacting the Territorial Lands Act, Parliament did not expressly direct its attention to the extinguishment of 'aboriginal' title".
I make no apology for dealing with those cases at length, because it is necessary to demonstrate to the Committee what has been happening.
So it is that we find a situation where, without the slightest doubt, native treaty and aboriginal rights have been extinguished by the Canadian Parliament. We find a situation in which the Canadian courts have, time after time, been rendered powerless to protect native rights. We find a situation where distinguished Canadian judges have acknowledged the solemn nature of the Crown pledges, the grave and solemn proceedings which have been pursued by the Crown, ever since the issue of the royal proclamation of King George III, when entering into treaties with the Indians for the cession or purchase of their lands. We find a situation in which those judges have been forced to acknowledge also that the Canadian Parliament, by its enactments, has caused the obligations of the Crown towards the native peoples of Canada to be regarded as a "delusive mockery", a "breach of faith", and "deceitful in the highest degree".
So much for past compliance with the Crown's promises to the native peoples which, the Committee will remember, our own distinguished Master of the Rolls has said must never be broken. Alas, once the Bill has left us, there is no way in which we, all honourable men, can say those promises will never be broken. What of the future once the Bill has left us? What will native rights amount to when, at some time in the 1990s, section 49 of schedule B to the Bill has been implemented?
Grave doubts have already been expressed in Committee as to the adequacy of the affirmation of native rights in section 35, of existing native rights—of native rights which may just have survived by the time the Bill comes into force. Perhaps some hon. Members feel that, whatever the errors in the past, the future may be counted upon to bring about something better. Perhaps cases of extinguishment of aboriginal land might simply have been unfortunate errors because the Canadian Parliament did not "expressly direct its attention to the extinguishment of aboriginal titles"; in other words, it was not in its view a matter of much moment. Perhaps in future, to repeat the hope expressed by Mr. Justice Cartwright, the treaties and the royal proclamation will be construed in Canada in such a manner that the honour of the Sovereign will be upheld and the Canadian Parliament will not be made subject to the reproach of having taken away, by unilateral action and without consideration, the rights solemly given to Indians and their posterity by treaty.
What indications have been given by the Canadian Government of their future intentions towards native rights? Do we have anything tangible to bolster the confidence expressed by the hon. Member for Inverness or to remove the fears so genuinely expressed by the Indians who sought his help? There is considerable information available to guide the Committee in its deliberations on the need for the amendment that I have proposed.
We are fortunate to have on record many statements of policy by the present Prime Minister of Canada. Some of these pronouncements do not restrict themselves to statements of policy. They are frank and reasoned expositions of his political philosophy. On 8 August 1969 Mr. Trudeau spoke in Vancouver on aboriginal and treaty rights. He acknowledged that Canadians had no great cause to be proud of the way in which they had treated the Indian population in the past. What he considered was wrong was that Indians had been set apart as a race. They were not citizens of their provinces as the rest of Canadians were, he said. They got their services from the federal Government rather than from the provincial Governments. They had been set apart in law, and they have been set apart socially too.
The Canadian Prime Minister took the view that Indians were at the crossroads. They could continue having a special status. Other Canadians could go on adding bricks of discrimination around the ghetto in which Indians lived, helping them preserve certain cultural traits and ancestral rights. On the other hand, Indians could become Canadians of full status.
It is of very great importance that I should not misrepresent or exaggerate what the Canadian Prime Minister said on that occasion. He was speaking with the utmost frankness, and we must heed what he said. It is important that the Commitee should hear his actual words, if only because this statement of policy, and all the


indications of the Canadian Government's native policy which have followed since, have made the blood of Indians and Inuit run cold with apprehension.
Mr. Trudeau, referring to the crossroads that the Indians had reached, said:
This is a difficult choice. It must be a very agonising choice to the Indian peoples because, on the one hand, they realise that if they come into the society as total citizens they will be equal under the law but they risk losing certain of their traditions, certain aspects of a culture and perhaps even certain of their basic rights, and this is a very difficult choice for them to make, and I don't think we want to try to force the pace on them any more than we can force it on the rest of Canadians; but here again here is a choice which is in our minds, whether Canadians as a whole want to continue treating the Indian population as something outside, a group of Canadians with which we have treaties, a group of Canadians who have as Indians, many of them claim, aboriginal rights, or whether we will say, well, forget the past and begin today; and this is a tremendously difficult choice, because, if—well one of the things the Indian bands often refer to are their aboriginal rights, and in our policy, the way we propose it, we say we won't recognise aboriginal rights.
I pause there because this was a policy statement, an expression of intent by the man who is likely to be identifying and defining those rights under section 37(2) within 12 months from now. It is a statement, therefore, of the most profound importance to the Committee in considering the need for amendments to section 49.
Mr. Trudeau said:
In our policy, the way we propose it, we say we won't recognize aboriginal rights.
But then he continued:
We will recognise treaty rights. We will recognise forms of contract which have been made with the Indian people by the Crown, and we will try to bring justice in that area and this will mean that perhaps the treaties shouldn't go on for ever.
The Committee should recall Lord Denning's considered view:
No Parliament should do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada `so long as the sun rises and the river flows'. That promise must never be broken.
Never be broken? The view of the Prime Minister of Canada is that
perhaps the treaties shouldn't go on for ever.
Mr. Trudeau amplified this proposition that the treaties should be terminated. He said:
It's inconceivable, I think, that in a given society one section of the society have a treaty with the other section of the society. We must all be equal under the laws and we must not sign treaties amongst ourselves and many of these treaties, indeed, would have less and less significance in the future anyhow, but things that in the past were covered by the treaties like things like so much twine or so much gun powder and which haven't been paid, this must be paid. But I don't think that we should encourage the Indians to feel that their treaties should last forever within Canada so that they be able to receive their twine or their gun powder. They should become Canadians as all other Canadians and if they are prosperous and wealthy they will be treated like the prosperous and wealthy and they will be paying taxes for the other Canadians who are not so prosperous and not so wealthy whether they be Indians or English Canadians or French or Maritimers and this is the only basis on which I see our society can develop as equals. But aboriginal rights, this really means saying, 'We were here before you. You came and you took the land from us and perhaps you cheated us by giving us some worthless things in return for vast expanses of land and we want to reopen this question. We want you to preserve our aboriginal rights and to restore them to us'. And our answer—it may not be the right one and may not be one which is accepted but it will be up to all of you people to make your minds up and to choose for or against it and to discuss with the Indians—our answer is `No'.
I submit that we could not have had the intentions of Mr. Trudeau towards the native peoples of Canada laid

barer than that. He is the Prime Minister of Canada; he is the architect and prime mover of the Bill before the Committee today. He looks to a future when the Indian, Metis and Inuit peoples of Canada are Canadians just like all other Canadians—white Canadians, like himself. He has preached with some eloquence a sermon of assimilation.
It will not escape the Committee that Mr. Trudeau was powerless in 1969—indeed, that he has remained powerless to this day—to put into legislative effect the policy of assimilation which he so frankly expounded. It would require changes in the Canadian constitution to bring the policy to fruition. To make the native peoples citizens of the provinces in which they live, to sever the special connections between them and the Canadian Government, acting for the Crown, would have required an amendment to the British North America Act. It would have required the transfer of subsection 24 of section 91 to section 92.
Mr. Trudeau has not been able to do that until now. He will be able to do it, with the support of seven out of 10 provinces, if the Bill goes on our Statute Book unamended.
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In the same year, 1969, as Prime Minister Trudeau made the policy speech from which I have quoted, an official statement of the Government of Canada on Indian policy was presented to the Canadian Parliament by the Hon. Jean Chrétien, the Minister of Indian affairs and Northern Development. It was a more circumspect statement than the Prime Minister's. He paid tribute to the contribution of Indian culture and ancestry both to Canada as a whole and to the Indian peoples themselves, but he also pointed to the crossroads that the native peoples had reached. It was his recommendatiion that the Indian peoples should leave the road that had existed since confederation and before, the road of different status, a road which, he argued, had led to a blind alley of deprivation and frustration. He pointed to another road for Indians, a road that would lead gradually away from different status to full social, economic and political participation in Canadian life.
Mr. Chrétien argued that the policy of treating Indian people as a race apart should be ended. He said:
The tradition of federal responsibility for Indian matters inhibited the development of a proper relationship between the Provinces and the Indian peoples as citizens".
He also said:
The ultimate aim of removing the specific references to Indians from the Constitution may take some time, but it is a goal to be kept constantly in view.
Referring to section 91(24) of the British North America Act, which allocated to the federal Government exclusive responsibility for Indians and land reserved for Indians, Mr. Chrétien said—and I ask the Committee to ponder these words:
In the long term, removal of the reference in the Constitution would be necessary to end the legal distinction between Indians and other Canadians.
The native peoples of Canada were far from reassured by that official representation of Prime Minister Trudeau's political philosophy. All that they could rely on was the knowledge that there could be no amendment to section 91(24) without the concurrence of the British Parliament.
Furthermore, there were in Mr. Chrétien's policy statement clear indications that if changes were to be made in Indian status they would be made with. Indian consent.


But we are considering a Bill here which, drafted and passed by resolution of the Canadian Parliament, does not have the consent of the native peoples of Canada. That is the point. They have not been consulted on matters vital to their continued existence. For that reason above all the Committee must consider the amendments, which would ensure full consultation with native interests and ensure that consent was obtained to any changes in the constitution of Canada which affect the Indians, the Metis and the Inuits.
There is further evidence of this urgent need and this is the last opportunity I shall have to give it to the Committee. Further public references to Indian policy were made after 1969, particularly in 1973 and last November, when the present Minister of Indian Affairs and Northern Development issued a document entitled "In all Fairness—a Native Claims Policy—Comprehensive Claims". These later pronouncements add nothing of significance which can be said to throw any further light on the Canadian Government's intentions towards the native peoples. They do not add to, or subtract from, the approach illustrated by Mr. Trudeau's 1969 speech and Mr. Chrétien's statement.
It has been represented to many of us by Indian representatives that any remaining confidence that their peoples had in the good faith of the Canadian Government was finally and inexorably destroyed when a confidential discussion paper was leaked to Indian interests last year. The paper, sponsored by the Hon. John Munro, Minister for Indian Affairs and Northern Development, was entitled "Native Claims Policy—Comprehensive Claims". It was dated 5 November 1980, and thus followed upon the decision of Prime Minister Trudeau to proceed unilaterally with the patriation of the Canadian constitution.
As the paper's title suggests, detailed questions of unsettled claims based upon aboriginal rights were discussed. I shall not dwell in any great detail on what this most revealing document contains since many hon. Members who have followed this question in detail have copies in their possession. I shall come rapidly to the central policy decision which this paper recommends and which is vital to our debate on the amendments.
The paper confirmed that it was the policy of the Canadian Government to negotiate the settlement of native land claims
where the Government is satisfied that a lawful obligation exists
Or
where native rights based on traditional use and occupancy of the land had not been extinguished by treaty or superseded by law".
But Mr. Munro's paper went on to make plain that
the policy did not mean government recognition that Natives owned the land or recognition of native title in legal terms; it was made clear that settlement would only take place in return for whatever interest they might have in the land. In adopting this position the government insisted on a clear and unequivocal legislative extinguishment of all traditional native rights, title and interests, whatever they might be, so that the claim in question could never be raised again, and to remove any possible cloud on the Crown's title that might inhibit the exercise of that title.
It is important at this point to reflect upon the fundamental importance of land rights and land title to the native peoples of Canada. Without a land base of their

own, how are these people to benefit from the right to self-determination, the right by virtue of which, in the words of the international civil and political rights covenant, to which both Britain and Canada subscribe,
they freely determine their political status and freely pursue their economic, social and cultural development"?
The answer is given with stark clarity on page 5 of Mr. Munro's confidential discussion paper: the native people's claim to self-determination is to be staunchly resisted. As paragraph 14 states:
one of the most difficult issues encountered in the negotiations has proven to be native demands for future political and administrative structures which would permit varying degrees of `self-determination' or 'autonomy'. There is also a strong belief among the native leadership that Indian title, rather than being extinguished, should be continued, which is diametrically opposed to existing federal policy.
I emphasise that statement. Is it any wonder these native people are not consulted? Is it any wonder that there are no safeguards for them in the constitution that we are being asked to enact?
Mr. Munro adds, in this revealing paper, that that belief,
together with inflated expectations of what can be obtained through a settlement in monetary compensation, land, and control over resources—as well as political autonomy—has further inhibited progress in reaching agreements.
How unsatisfactory that people should trust to the solemn promises and obligations that were entered into in treaties with the Crown! How inconvenient! Let them be brushed aside.
The question that the Committee must consider is this: how is the right of the native peoples of Canada to secure their future as distinct communities within Canada to be protected, when the policy of the federal Canadian Government—to which we are fortunate enough to be privy—seeks to deny them autonomy and the ownership of land?
If we are to comply with our clear duty, we in this Parliament must propose amendments to the legislation for which we, and we alone, are responsible, so as to ensure that we do nothing, in Lord Denning's words, to lessen the worth of the guarantees which the native peoples of Canada have been given by the Crown.
Our amendments to section 49 of schedule B propose, first, that native interests be directly consulted by the Prime Minister of Canada in the course of the constitutional conference which is proposed; and, secondly, that a proper and adequate formula be devised for future amendments to the constitution affecting the native peoples of Canada, a formula that requires their consent.
Our amendment No. 40 proposes that a constitutional conference composed of the Prime Minister of Canada and the duly authorised representatives of the aboriginal peoples of Canada should take place within 15 years after part V comes into force, in order to renew its provisions in its application to the aboriginal peoples. The amendment goes on to define who the duly authorised representatives of those people should be.
I shall not detain the Committee any longer on this amendment and will advance important new arguments later, when I hope to speak on my amendment No. 41. If I have spoken at some length it is because these matters were never properly discussed in Canada, which, in itself, is justification for my comments. It is a sad commentary on the way this Bill has been rushed before us that the issues of native rights have to be discussed here, where we


have no power to implement any decisions, and not in the Ottawa Parliament, where the real responsibility lies. By the time we have finished debating the matter here, the message may have reached the Canadian people. I profoundly hope so.

Mr. Grimond: I speak with some diffidence on this Bill because I know little about Canada, even less about the Indians and I am no expert on constitutional law. However, I will be brief and will speak only because I am concerned at the anomalous position in which this Parliament seems to find itself.
I do not understand the need for such haste over this Bill. No good reason has been advanced for pushing it through before the pending cases are heard in Britain and Canada. The statement of the Leader of the House, during our last proceedings, showed that largely domestic difficulties existed between the usual channels. That would not be a compelling reason, when the Bill comes to the notice of those concerned and its effect on their lives is known, for rushing it through.
I am also concerned with the Indians' position, and, therefore, support the amendments moved. Most of these arguments have now been well rehearsed and I adopt many of the remarks made from the Opposition Front Bench in support of the amendments. The two conferences will clearly be of the greatest importance and we should ensure that the Indians are represented.
However, we should not be too self-righteous or attack the Canadian Government too vigorously about their possible errors, past or future. My constituency of Orkney and Shetland came by treaty to the Crown of Scotland and, therefore, the Crown of Great Britain. At the time of what was called "impignioration", we were guaranteed for all time the rights of fudal law. Those rights have been constantly infringed by the British sovereignty. We must fight very hard to retain the last vestiges of those rights. I was involved in a considerable dogfight with no less an authority than the Crown Commissioners on those rights.
Although we were apparently responsible for the rights of the Indians over a very long period, I am not aware that the Crown in Britain did much to protect them. However, "put not your trust in princes, " or in any authority of that sort. I keep an open mind about future actions of the Crown in Canada. It is our duty to ensure, whatever our past shortcomings may be, that we do our best for these people in future.
I do not know whether the Government have seen the paper prepared by Professor Fawcett, who is an expert on international law. Under the international, civil and political rights covenant, he is sure that it is the business of this Parliament to ensure that all individuals within Britain's territory and subject to its jurisdiction, have their rights recognised. He is equally clear that the Canadian Indians are subject to our jurisdiction, although not within our territory. He said:
It cannot be disputed that, under relevant statutes from the British North American Act 1867 onwards, the United Kingdom Parliament has jurisdiction, which it can and must exercise, over the form and provisions of the constitution of Canada, though this jurisdiction will be terminated on adopting the Canada Act.
So it seems possible as I put it no higher than that—that we have a duty and right to take cognisance of this matter and, clearly, to amend the Bill. I take the point that if we amend the Bill and, particularly, the schedules, it will no doubt have to return to Canada. As I said in an earlier intervention, the Government would have to withdraw it.
There is no doubt that we have a right to deal with this Bill. Suppose the Bill contained a provision that the Indians should be exterminated? That would be absurd, and it could not be said that we were bound to enact such a suggestion because it was recommended by the Canadian Government. We would, in that case, have had to reject the whole Bill. The view that we are bound to say nothing about the Bill and simply let it go through cannot be supported.
I appreciate the Government's point of view but they might have been a little more helpful in explaining what some of it means and exactly what they feel is the purpose of these already lengthy proceedings. The peculiar constitution of Canada was explicitly enacted in its present form so that there would be some extra protection for minorities—that was the whole reason for it. It is just at this moment, when minorities' rights are raised, that we should give considerable care to further developments of the Canadian constitution.
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It seems clear from the amendments that there are inadequate safeguards for consultation with the Indians, to ensure that they will be represented at these conferences and, indeed, that the conferences will respect the undertakings of treaties that are already in force.. The Indians' land rights are extremely important and should be particularly protected. As the matter stands, I do not know what we can do, other than draw forcibly to the attention of the Canadian Government the views of this Parliament. I hope that the main features of the Bill are enacted and wish it well as a whole.
However, I am unhappy about those aspects and will be extremely unhappy if the Bill leaves this House without note being taken of the strong objections voiced on all sides, first, about the speed in which it has been enacted, secondly, about the extreme doubt as to what it means and, thirdly, about whether we have discharged our obligations to a minority people to whom we owe a great deal. The Indians were, after all, the original inhabitants of the continent and, on any showing, have been extremely badly treated over the past 150 years.

Mr. Ennals: I am glad that today's group of amendments gives us a further opportunity to discuss the effect of the proposed legislation on the Indians and aboriginal people.
I much welcome the intervention made by the right hon. Member for Orkney and Shetland (Mr. Grimond), partly because it showed the great sympathy with which he considers the problems of minority peoples and the Indians, and also because it shows a sharp contrast with his hon. Friend the Member for Inverness (Mr. Johnston), who seemed to be completely satisfied that everything was all right in Canada; there was no reason for us to have arty concern. Having delivered his speech, the hon. Member for Inverness left, and we have seen no more of him.
A very powerful case for the amendments was made by the hon. Member for Essex, South-East (Sir B. Braine). I am especially concerned with amendments Nos. 29 and 41, which are of fundamental importance and on which I hope that the Committee will have the opportunity to divide.
What we had to say in our debate both on Second Reading and in Committee last week has aroused a great deal of interest in Canada and, naturally, greater interest in Canada than in Great Britain. If one seeks, as I have


done, to follow the press in Canada, it is interesting to see the position that the press has taken on our debates. I shall give two quotations, one from the Toronto Globe and Mail of 25 February. I shall quote from a short extract from the leading article that was entitled:
The Man who Complained of Debate
The article stated:
Justice Minister Jean Chrétien sighs wistfully and wishes that Britain's MPs were as diplomatic as he is: 'I will not comment on British affairs because I don't like people commenting on Canadian affairs' he said after watching a five hour debate on the Canadian Constitution on Tuesday in Westminster. Mr. Chrétien is a mature man and he doesn't fly into a rage about the impudence of the 40 odd backbenchers who were supposed to hold their noses and follow Canada's demands. Instead he quietly mourns the lack of decorum among those upstart backbenchers like a father who sadly turns his eyes away froth the indiscretions of his adult child".
Perhaps we ought to tell the Toronto Globe and Mail that those rumbustious young backbenchers included three right hon. Members who formerly were members of the Cabinets of different Governments and the former leader of the Liberal Party. Those Members of Parliament included right hon. and hon. Members from both sides of the House and from different parties. Therefore, the actions of those people are not to be taken lightly and it is encouraging that they are not.
My second quotation comes from the Montreal Gazette as recently as 27 February 1982, which states:
In last week's debate on the Committee stage of the Canada Bill the British critics often were right. They focused their attention on the native peoples, who have mounted an effective, high-profile lobby in London over many months. Our record of dealing with the native peoples is indeed disgraceful. The present condition of the Indians is indeed shocking. The failure of Ottawa to consult the native peoples' organisations frankly and fully on the constitution in advance was deplorable. The Provinces' success in pressurising Ottawa into inserting that weasel word `existing' before 'aboriginal and Treaty rights…are hereby recognised and affirmed' was a cynical betrayal of the Indians' interest. The sad fact is that the native peoples have practically no political clout in Canada when larger economic interests are threatened".
That point was well made by the hon. Member for Essex, South-East.
It is therefore of greater importance that before the Bill leaves the House we should enunciate, understand and express the concern of the Indian peoples, which leads to the importance of the group of amendments that we are discussing.
I was encouraged to see that the Indian Governments of Saskatchewan produced a statement to the effect that:
The Indian peoples of Canada are deeply moved by the intelligence and compassion with which the House of Commons has dealt, so far, with aboriginal and treaty rights in the Canada Bill. In response to the advice of many Members, all the Indian Nations have agreed to a united, clear and specific negotiating position, have set up a negotiating team in Ottawa, this week, and have invited the Government of Canada to negotiate a just and lasting constitutional settlement. The Indian negotiating position is based on the principles contained in two amendments to the Canada Bill.
Those amendments are the new clauses proposed by the hon. Member for Sevenoaks (Mr. Wolfson) and me. I shall not pursue them at this stage. The Indian Governments stated further:
So far, we have had no response from the Government of Canada. However, we have reason to believe that the tide of world opinion and national opinion, in Canada, has been turned

in our favour by the British House of Commons. What we need now is determined diplomatic initiatives from Britain and an impressive, if not decisive, vote for the … amendments.
It is encouraging that the Indian people about whom we have expressed so much genuine concern recognise and appreciate those expressions in the House. We all hope that the Canadian Government will respond to what has been said during the debate.
During the debate last week some hon. Members, particularly the hon. Member for Islington, South and Finsbury (Mr. Cunningham), raised the question of why the Indians had not objected before now about their treatment or about the infringement of their aboriginal rights. A second question was: if their legal actions now before the English courts are not vexatious or dilatory, why have not the Indians appealed to the English courts before? We should look at those questions in the light of the amendments
I shall refer first to the second question. We must recognise that the Indian peoples of Canada were forbidden by Canadian law to prepare legal actions until 1951. I have section 141 of the Indian Act before me. An amendment was made to it in 1927. I shall not read it, but it spells out explicitly that the Indians could not even prepare legal action, let alone take it. Indians were not even granted the vote until 1960.
Since that time the Indians have done everything that could reasonably be expected of somewhat oppressed aboriginal people to settle their grievances with Britain and Canada through political means. I am sure that they were right to do so. They have come to the English courts only as a last resort after more than two years of careful and costly preparation of their case and after all the doors to power in Canada and Britain seemed to have been closed in their faces. They issued a writ the day after the constitutional package came to Westminster—the first day that they could launch their action. They have asked the courts to expedite their case.
Last week Mr. Justice Vinelot ordered the British Government, who had been pleading for more time, to prepare their defence by 16 March. The pressure is on the British Government in the same way as the British Government are putting great pressure on us to pass the legislation. Mr. Justice Vinelot said that the Indian case raised issues of great constitutional importance that must be clarified at the earliest moment. He noted that if the Indians succeeded, the Canada Bill would be declared unconstitutional and of no effect. He recognised the supremacy of Parliament but noted that it was the proper function of the courts to interpret that supremacy.
The Saskatchewan Indians issued their writ in January only after the Select Committee on Foreign Affairs had issued its final report on the Canada Bill. The Saskatchewan Indians wanted a political, not a legal hearing. They sought to be heard by the Select Committee, but in its wisdom—or otherwise—the Select Committee thought not. The Indians sought to be heard by representatives of Her Majesty's Government in London, but in their wisdom the Government thought that that was inappropriate.
The leading counsel on behalf of the Indians submitted to the Select Committee that, even if the Crown was divisible, the Committee should satisfy itself that a proper novation had been agreed with those concerned about the treaties. The Committee did not respond to those submissions, nor did it acknowledge those legal opinions


in its published report. It was only when they received that report that the Saskatchewan Indians felt that they were free to institute court proceedings. They, too, are asking the courts to expedite their case.
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Hon. Members should not say that these cases are dilatory. We might wonder why the Government have sought the passage of the Bill even while their lawyers have been attempting to delay the hearing of Indian legal actions. Like the hon. Member for Essex, South-East, I cannot for the life of me understand why the Bill has been forced on us when in both the House of Lords and the Chancery Division of the High Court legal proceedings are being taken. The House should await the outcome of the cases now before the courts.
Before I turn to examples of political protest I shall draw attention to certain beliefs held by Indians about their relationship with this Parliament. They explain why it is so important that the amendments be accepted, either in the Bill or by the Canadian Government when they receive the Act. The Indians' beliefs may cause some of us discomfort. Nevertheless, they are political realities and we and our Canadian friends must deal with them now.
Every Indian in Canada believes that the Canadian federal Government and its agencies are agents of the British Crown in Parliament, endowed by Britain with certain administrative and legislative powers, and entrusted by the British Crown with powers to implement on its behalf the promises that Britain made to the Indians when we signed treaties with them. Because of that belief, Indians have protested both to the Canadian Government, as one would to local agents, and directly to the British Government as one would to an absentee landlord. Whether the Indians direct their protests to Canada or to Britain, they have always believed that they are dealing directly or indirectly with the British Crown and therefore with this Parliament. That is why they have looked to this Parliament and why their representatives have come and spoken with so many hon. Members in this Parliament.
Before we dismiss that belief or question its sincerity, we should remember that that was also our belief at least until Canada became functionally independent and the British Crown became divisible. It is interesting to ask when that happened. None of us can be sure. In a recent decision by the Court of Appeal, one judge suggested that it was 1867, another suggested 1926 and a third suggested 1931. There is, therefore, already doubt about when the divisibility of the Crown occurred.
We cannot be certain about how it was done, either. No one Act brought it about. Rather, it is thought to have been an evolutionary process, a question of practice and usage that we call devolution. We say now, some 50 years later, that as a result of this evolutionary process, the British Crown's obligation to the Indian nations of Canada, solemnly undertaken according to the terms of the Royal Proclamation of 1763 and more than 85 major treaties, devolved to the Crown of Canada. The practice of devolution follows a long tradition of doctrines created by Europeans to rationalise and legitimise what would otherwise have been blatant and cruel usurpations of the lands, cultures and societies of aboriginal peoples.
The doctrine of devolution, of granting sovereignty to our former colonies and dominions, and fostering the concept of Commonwealth may make sense to us.

However, it must be one of the more abstruse politico-legal concepts, the implications of which are not clear to our own best legal minds, if the Appeal Court's decision is any guide, let alone to the Indian peoples. Can we honestly and reasonably expect that this concept should have been obvious to the Indian nations more than 50 years ago, scattered as they were over thousands of miles of Canadian wilderness, separated by 60 distinct languages and with different cultural traditions and backgrounds?
We should ask whether the concept of devolution was obvious to us. If it was, why did we not tell the Indians and make it absolutely clear what the constitutional relationship was? We did not. There can be no mistake about that. No British Government from then until now have claimed that they told the Indians or that we sought their consent. Had we sought that consent, we should never have obtained it without there being equal agreements in Canada giving the Indians the assurances that they have not so far had. There was no mention of it in the British North America Act 1867 or in subsequent amendments to that Act, and there is no mention of it in the Statute of Westminster. The British North America Act 1867 was drafted on to, and did not disturb, pre-existing constitutional arrangements between the Indian nations and the British Crown.
Nowhere has there been a clear statement or any negotiation involving the Indians accepting the divisibility of the Crown. Did we forget to do it? The problem goes back over many years and Governments. There could not have been an intention to mislead the Indians. Whatever the explanation—there must be one—we must not turn the Indians away now with a casual reference to a politico-legal theory which is as meaningless to them as I suspect it is to most Britons and Canadians.
After 1867, the Indian nations were deeply concerned about the dominion Government's persistent and serious infringement of the rights guaranteed under the Royal Proclamation of 1763. They feared that the Dominion Government would progressively extinguish their rights as that Government grew in power. Those fears were the subject of many petitions, addressed by the Indians to the British Crown prior to the confederation in 1867, of which the British Crown took note. There were referred to in the negotiations leading up to the signing of the treaties and the speeches of the commissioners at the time of the signing.
It could be said that the British Crown induced the Indians to sign treaties, thereby yielding up vast quantities of rich land, by promising them that if they signed those treaties and honoured them peacefully the British Crown would guarantee that the aboriginal nights and treaty tights of the Indians would be constitutionally protected forever. That protection was offered against local powers. That was the point of the treaty. When Queen Victoria said that she would observe those treaties for as long as the sun rises, the grass grows and the river flows, she was not using the language of municipal law, but what she said was believed by the Indians. Can anyone believe that the Indians would have signed those treaties and surrendered their lands if they had known of the road down which the would find themselves forced over the years?
In his recent decision, Lord Denning said that all the post-confederation treaties were between the Indian nations and the indivisible Crown of Great Britain and Ireland as it then was. Therefore, those treaties were the responsibility of the House. Nevertheless, Lord Denning


said that the Crown became divisible after the treaties were signed, sealed and delivered. I do not question the fact or the appropriateness of the divisible Crown, but I question our political behaviour as a powerful State in failing to dispose of our treaty obligations in a fit and proper manner and in full conformity with the requirements of international law.
We have failed to notify the Indians and we have failed to gain their consent. The Crown became divisible, but it was, and is, still obliged in international law to seek the consent of the Indians if there is to be a legal novation of the treaty. As I understand it, "novation" is the legal term denoting the re-arrangement of a contract with the consent of all the parties to the original contract. I am not a lawyer—that is why I would appreciate a ruling on this from our courts, and why I believe that the House should await final judgment in the case brought before the British courts by the Saskatchewan Indians on this very point of novation.
I am certainly not a lawyer, but I am a Member of this House and I believe that, irrespective of any legal rights that the Indians may or may not have, they have the right to be heard with due respect, in keeping with the solemnity with which we went about securing their signatures to the documents by which they surrendered to us vast quantities of their homelands. We sent uniformed officers of our Armed Forces to the treaty-signing ceremonies. We appointed the Royal Canadian Mounted Police as officers of the Queen with a special duty to protect Indians from the "frauds and abuses" of the white man. We invoked the name of God and sent our Christian clergymen. As ultimate proof of our good faith we had our Queen give her personal and solemn oath that she, her heirs and her Governments would protect the Indians' right to lead their own way of life on their own homelands for ever.
Is it fitting that the House should now dismiss Indian claims as naive, insincere or uninformed? I believe that it is not. That is why I believe so powerfully in the amendments. In 1763, we promised the Indian nation an open assembly to discuss their rights and the transfer of land titles. We kept our promise in the treaty-making process and we should keep our promise now that we are about to pass a Bill which will alter the constitutional status in Canada. To pass a Bill which does not oblige the Canadian Government to consult and secure the agreement of the Indian peoples would bring disrespect to this House. The Indian nations deserve a constitutional conference at which their consent can be sought for all the constitutional proposals that affect their rights. The fact that the Indians are now a poor, dispossessed minority in their ancient homeland does not excuse us—it obliges us even more to treat them with honour and respect.
Although the Indians took most seriously their treaty promise to keep the peace, their oppression at the hands of the Indian agents resulted in violent uprising in the mid-1880s. As a consequence, a band of Saskatchewan Indians led by the distinguished Chiefs Poundmaker and Big Bear, both of whom signed the treaties, was captured, and found guilty of treason and felony because they stole rations from the whites to feed their starving communities. Poundmaker and Big Bear were imprisoned, and eight of their band were convicted of murder and hanged.
The next wave of Indian political protest resulted on the return of the Indian soldiers who had volunteered to protect

the British Crown in the First World War. We should never forget how many Indians fought with us not only in the First Word War but also in the Second World War. After the First World War, the Soldiers Settlement Act of Canada gave returning soldiers land in reward for their services. But the returning Indian soldiers were not given land or even the cash compensation. They were treated as second-class citizens. Instead, their own Indian community was forced to surrender Indian reserve lands.
Some hon. Members may have been privileged to meet John Tootoosis, an Indian elder from Saskatchewan who is now 83 years of age. He is the grandson of Chief Poundmaker and, as those who know him are well aware, an indefatigable champion of his people's rights under the treaties as he understands them. John Tootoosis bridges the Indian protest of the mid-1920s with those that we are seeing today. For more than 50 years, he has travelled thousands of miles by train, horseback, wagon and even on foot, to all parts of Canada to organise his people and to protest at the encroachment of their rights. Time and again, he was returned to his reserve by the Royal Canadian Mounted police. He was threatened with excommunication by the Christian churches and pilloried from pillar to post. In 1979, he arrived in London with 350 chiefs to give advance warning that the Indians were not being consulted in Ottawa on the constitutional proposals which would be arriving in England. Since 1981, he has become a familiar figure in England. His trust in our honour is a challenge to all of us.
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The Indians have been administered under some duress from 1860 to 1951. Acts were passed in Canada which outlawed their religions and social ceremonies, forbade them to make land claims or to use the courts, restricted their movements to the reserves except with the written permission of an agent, forbade political assemblies and denied them the right to vote until 1960.
Despite all this, the residual responsibility for Indians retained in the British North America Act—the link with the British Crown, as they believe it to be—has been their lifeline. The present constitutional status quo may not have served the Indians well, but they believe that it has protected their culture and their communities from total extinction. They point to the White Paper of the first Government of Mr. Trudeau, as the hon. Member for Essex, South-East has said. In 1969, Mr. Jean Chrétien, then Mr. Trudeau's first Minister of Indian affairs proposed to eliminate the special constitutional status of the Indians within five years, to put them for the first time in Canadian history under the jurisdiction of the provinces and to bring them into what he called the "Canadian mainstream". But he could not carry that policy forward. The Indians and many non-Indian Canadians protested.
More important than Indian protests, which have had little effect in Canada, was the incontrovertible constitutional fact that in order to implement the policy Westminster would have to amend the British North America Act. Would Westminster do it? Rather than try us, the White Paper was withdrawn for "further consideration" and the patriation package now before us was prepared instead. Now, little more than 10 years after the White Paper, which was very frightening for the Indian peoples, we are apparently prepared to remove constitutional protections for the Indians and to put their


future unconditionally in the hands of Canada without first seeking the reasonable protections that we promised to the Indians for ever.
That is why the amendments now before us are fundamental. Even if the Bill has to go to Canada in an amended form, be revised there and returned here, I still
wish to see the change made. In view of the long history of Indian protest, is it proper that we should lightly dismiss the fears of the Indian people simply because they are a small minority in their own country? Is it not our duty under the royal proclamation and the treaties, and in accordance with the Statute of Westminster, to ensure that in the new Canadian federation to which we all look forward with hope and good will, the Indians, too, should have some cause for celebration—as they will, if the amendments are passed. Otherwise, they will be left to the devices of the Canadian Government. I make no attack upon the Canadian Government. Indeed I plead with them to understand that and to respond to the views expressed here and of their own volition to do what hon. Members on both sides of the House urge should be done in the amendments.

Mr. Mark Wolfson: I am pleased to have the opportunity to support the amendments because they continue the debate on the question of Indian rights and the importance of those to the future of a united and prosperous Canada. It would be wrong for anyone in the House to underestimate the effect that our debate, both on Second Reading and in Committee, has had on public and political opinion in Canada.
Our discussion has provided time for the Canadian Government possibly to reconsider their somewhat intransigent position over refusing to have discussions with the representatives of the Indian people on the constitution Act before patriation. It continues to be my hope that we may yet see a change in that stance. In saying that, I make the point that I am not wishing to be unrealistically critical of the Canadian Parliament, people or Government. I am saying that because it is my genuine wish, as it is of many other hon. Members who have spoken, that we shall see a happy result from the Bill and its enactment. I hope that I am speaking not only for the Indian people, but for all Canada.
I shall refer in addition to an article in the Montreal Gazette, which was syndicated across Canada, following our first day's debate in Committee. I shall take one or two points from that. About our debate it says:
They focussed their attention on the native peoples, who have mounted an effective, high-profile lobby in London over may months.
That is important. There is a Canadian paper referring to the fact that the Canadian Indians' lobby in London has been effective. Yet, on Second Reading some hon. Members suggested that the Indians had not clearly articulated their real demands. It is becoming clear now, not only to hon. Members but to Canadians, that the Indians have articulated their requests with considerable clarity.
The report goes on:
The failure of Ottawa to consult the native peoples' organisations frankly and fully on the constitution in advance was deplorable … The sad fact is that the native peoples have practically no political clout in Canada when larger economic interests are threatened.
I hope that I have not wasted the time of the Committee by making those points a second time.
As a result of reports in Canada, there has been considerable discussion at the highest levels. I have it on good authority that Ministers in Canada who are most closely involved with the constitution Act and Indian affairs are giving active consideration to possible new initiatives. Up to now, it has been clear in Canada from civil servants who have been dealing with the Indians that there were to be no talks with the Indian representatives before patriation. In particular, Mr. Kirby, the civil servant responsible for federal and inter-provincial affairs is on record as having made that point to the Indian representatives.
Indians had the opportunity to put their views to the Government as members of the general public in Canada. But they had no opportunity to do so as a separate group with their own identity. Members of the federal Parliament have been affected by our debates here. They have been surprised, and many of them have been impressed and concerned, at the interest in the Indian problem shown by hon. Members.
In Ottawa, the Indian chiefs have invited the Prime Minister and the provincial Premiers to talks before patriation, so the offer is there from the Indian side. I hope that it will not be considered wrong that those of us who support the amendments should make it clear that, if possible, we wish to see the Canadian Government respond to that request.
I hope, too, that it is not out of order for me to say that perhaps our Ministers could take the initiative in reporting to their opposite numbers in the Canadian Government the strength of feeling that has been shown in our debates on this issue. I know that on the first day in Committee my hon. Friend the Minister was asked whether any such initiative had been taken, and he said that it had not. I ask that question again today. Can my hon. Friend hold out any hope that he can see a way of making such representations?
I wish to spend a moment or two spelling out—I hope in practical and fairly clear terms—what the Indian peoples would like to see as a form for increasing their opportunity for self-determination. That follows the points made in the amendments concerned with ensuring that the Indian peoples are properly consulted about their own future. They want the opportunity at local level, the band or village level, provincial and national level to build into the Canadian political organisation their own representation to the area government system as it is now, to the provincial Government and to the national Government. These are issues that they will be asking for and discussing if and when they are given the opportunity to do so at a post-patriation conference.
What then would they want to contribute towards in terms of their own self-determination? They would like to utilise their Indian law and culture in reaching decisions on how their local band should be run and how moneys available to that band should be spent. All too often the federal Government's representatives take decisions on the most minute details concerning Indian life. For example, at provincial level in British Columbia, the social services of the provincial Government organise the adoption of Indian children into families outside the Indian culture and occasionally outside Canada itself.
That may often be done for good social reasons, on the basis that life for a child is better outside an Indian community than within it. Hon. Members will agree that that follows the policy designed to achieve assimilation of


the Indians, rather than the policy of self-determination by Indians of their own future. Indians would like to have the opportunity of organising such adoptions within their own bands in their own way, but obviously with the assistance of, and discussions with, those who give professional help in these matters. At the moment, they have no opportunity to determine such matters for themselves.
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At provincial level they would like to have a dialogue, on an equal level, on education, economic development and the use of revenues from their resources. They would like to be able to monitor provincial legislation, which could affect their hunting, trapping and fishing rights. At present they have no opportunity to do that effectively.
At national level, the Indians would like the Assembly of First Nations, of which all 575 chiefs are members—they sit and vote in that assembly—to be recognised by the federal Government. They could then have a national political agenda of outstanding issues to be worked out between the assembly and the federal Government—for example overall national policies which affect the Indians, large-scale settlements of land claims and the implementation of treaties. All those points have been raised in our debates. They spell out some of the real concerns of the Indian people. They fear that their present protection will be altered by the patriation of the Act to Canada.
In addition to the political organisations for which they look, which are regarded as being totally within the Canadian federal system, they look for the establishment of an office for the protection of Indian rights. That would operate at only one level. It would be appointed jointly by Parliament and the governor-general in consultation with the Indians. It would have two functions. The first, which I might describe as the active function, would be to encourage the settlement of outstanding land claims and other issues. It would monitor draft legislation by the federal Government which might infringe Indian rights. It would disseminate political information and politically educate the Indian people.
Secondly, in a passive role, the office would act as arbritator, or it would intercede on behalf of Indians in judicial proceedings. The interesting point about that suggestion, which was made by the Indians, is that it would represent a continuing link between the governor-general, as representative of the Queen in Canada, and the federal Government.
The point has been made several times that the Indians have a view—and we should accept that it is a real view—of the Crown's concern and long-standing involvement with them and their rights.
The Indians have detailed and varied models on the table with the Canadian Government about how such political activities can be achieved. The over-riding point that they make—and it is germane to our debate—is that changes in the constitution which affect their rights must have their consent, and that the protection requiring their consent must not be taken away. Historically, that is what the British Crown and Parliament in their jurisdiction in Canada, before Canada became a sovereign power in her own right, always followed.
Obtaining Indian consent is consistent with the royal proclamation of 1763. It is consistent with the basis of treaties, with the British North America Act 1867 and with the Statute of Westminster.
Canada as a nation has been built on the basis of achieving consent for change for the Indian peoples. They were not conquered. The opportunity for white expansion in Canada was carried out through treaties which were made with the consent of the Indians. We are asking that the principles be continued, despite the fact that over the years there have been many barriers to achieving that consent.
I shall give an example of the situation that existed for the Indian people for many years. It highlights the progress that they have made in a relatively short time in being able to put their case forward in a politically sophisticated way. In 1927 an amendment was added to the provision which prevented Indians from raising money to press their claims. Part of the relevant section states:
Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months.
That was the law in 1927 in British Columbia and it continued until 1951. That may surprise many hon. Members. It was a constraint on any opportunity for political development for the Indian people in that part of Canada. During that time, Indians in most parts of the country were refused permission to leave their reserves to attend political meetings. The exceptions were the war veterans from the First World War who had special privileges. That group maintained the organisation of Indian activity and representations to the federal Government. Yet even they were often returned to the reserves from political meetings accompanied by the Royal Canadian Mounted Police. I do not suggest that the situation is like that now, but it demonstrates the difficulties that Indians have faced over the years when trying to represent their case effectively to the Canadian Parliament.
Over the past 10 years, the achievements of Indian organisations and individuals have been enormous. They have identified the problems of native peoples and suggested practical solutions that take account, as no Government policy has ever done, of the fundamental, social and historical factors underlying the Indian situation. They have gained power, respect and great political expertise after a century of being discredited and sapped of initiative. They have given more hope and determination to the Indian community than it has had for 100 years.
It is right to pay tribute to the fact that the Trudeau Government have played their part in bringing about that change. Mr. Chrétien, the Minister of Justice, who is responsible for the Canadian constitution Act and who has recently spent long hours in the Gallery, was previously the Minister for Indian Affairs. In that role he was probably criticised more than any previous Minister of Indian Affairs. However, he was also instrumental in


creating an atmosphere in which such criticisms were possible—most notably by giving financial support to national and local Indian organisations.
Mr. Chrétien had many well-publicised and ferocious debates with Indians, but they demonstrated a readiness that had been markedly absent in earlier Administrations to take the views of the native peoples seriously. His successors as Ministers for Indian Affairs appear to have followed the same basic approach. But, despite those encouraging signs, there has still not been a major transformation of Indian life. Indeed, Indians fear that their future could worsen under the new constitution.
Hon. Members may still ask why that should be so. The reason is that the Indian peoples have no representative rights at the constitutional conference. They know that in the many discussions, arguments, and negotiations, and, indeed, deals that are bound to take place over the years between the provincial and federal Governments, the aboriginal peoples could be the losers. Those facts are just some of the many justifications for discussing the Indian position in Canada today.
The Department of Indian Affairs in Canada is a huge and costly vested interest which perhaps unwittingly obstructs the movement of power and resources to the Indians in the way that they would wish. The acceptance of educational reform and the adoption of a new approach to land rights are nothing more than gestures by the Government until the new measures have been implemented. Indeed, the enormous need for economic assistance has not yet been met.
There is still much mutual resentment and misunderstanding between the white population and the Indian people of Canada. Many Canadians do not accept the remedies which native peoples propose for their problems. For example, it is argued that Indian pressure for financing economic development on the reserves—which other hon. Members have discussed—represents an unnecessarily expensive and out-of-date method and that if the Indians would move nearer to the white centres of population such development could be achieved at a fraction of the cost. That economic argument is correct, but it totally overlooks the basic rights of the Indians and their wish to retain their ancient land base, culture, laws and way of life.
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Indians are still denied the right to tackle their own ills on their own terms, and they now wish to do that. In the past 100 years no satisfactory solution has been found by either the British or Canadian Governments. The assimilation policy was one answer, leading—as its name implies—to the ultimate disappearance of the Indian peoples into the rest of white Canada. That is in total contrast to what the Indians want.
I hope that the Canadian Government will now take the view that solutions can no longer be imposed from outside and that they need to have the courage, strength and enlightenment to give responsibility to the Indian peoples. There is a widespread conviction among the Indians that, whatever paths they follow in future, they must retain their Indianness.
An impressive expression of that feeling was given in a speech by Chief Dave Courchene, president of the Manitoba Indian Brotherhood at treaty centennial celebrations in 1971. He said:
Our struggle will be over when we have in our own way found our place among the many peoples of the earth. And when that time comes, we will still be a people identifiable and

independent and proud … Your culture, we say to non-Indian Canadians, is not the culture of your ancestors of one or of five hundred years ago. Nor is ours. Upon us both impinge cultural forces which our traditional societies have not prepared us to face. … Our identity must be clear; our culture is creative. We are developing a twenty and twenty-first century culture And it is and will be an Indian culture … We recognise that there have been changes, but we must see those changes through our own eyes and adapt to them on our own terms.
Those words summarise most exactly the aims and aspirations of the Indian peoples today. With good sense, feeling, and some eloquence, the Indians ask that white Canada allows them a future worthy of their part of the land of Canada itself.

Mr. D. E. Thomas: I am not sure whether I should apologise in advance to the Lord Privy Seal, because he will have to listen to me for a second successive evening. I hope that he will find my remarks about North America less controversial than those that I made last night about Central America.
I very much agree with the comments made by the hon. Member for Sevenoaks (Mr. Wolfson) and by other hon. Members. I am grateful to the hon. Gentleman for putting on record the forms of political and cultural autonomy that the Indian nations seek. I hope that his remarks will be heard by the Foreign and Commonwealth Office and by the various levels of government, federal and provincial, in Canada.
The hon. Member for Sevenoaks contrasted the two policies towards the Indian minority—that of assimilation, and that of self-determination. As a member of one minority—Plaid Cymru—showing solidarity with another, I am pleased to support the amendments. They seek to bring the Indian nations into constitutional dialogue with the federal and provincial Governments. They should be guaranteed a place at the constitutional conference and an opportunity to assent to any amendments made to the constitution. That is absolutely crucial to any notion of self-determination. The group concerned should have access and representation in constitutional terms and be able to express its own position. Its position and views should be binding and effective in any settlement. That is the historical position of the Indian communities within Canada.
The position of the Indian minority is similar to that of other minorities throughout the world. Indeed, the issue of minorities is one of the most pressing issues that face Governments throughout the world. It is an issue which Governments in Eastern Europe and the British State have had to face. The Lord Privy Seal is more experienced than most hon. Members in dealing with minorities within the British territories. I am certain that the sensitivities he has developed will be useful in the representations which I hope he will be prepared to make to the Canadian Government as a result of our debates.
The position of minorities has to be defined by the minorities themselves and by the majority within a given territory which has a minority within it. I hope that these remarks will not be regarded as being out of order. They relate specifically to the political structures proposed in the amendments. The position of the minority has to be guaranteed in political terms. That is what the amendment s seek to do. There must be a cultural dimension. However, there must also be an economic dimension. That is where the various arguments advanced by the Indian peoples coalesce. They are economic arguments for rights. They are ecological arguments for rights to land and the Indians'


particular relationship with their land. They are also cultural arguments, for, in order to survive, a minority group must have a cultural base. They may be newly arrived minority groups—so-called immigrants—in a community where they form ethnic minority groups. They must have their institutions. They must also have an economic base within society.
Therefore, in order to sustain itself under the complex pressures that late twentieth century society puts on any minority, any cultural minority must have an economically secure base and a linguistically secure base within the education system. It must be able to reproduce itself in all the senses of that term—the biological sense as well as the cultural sense.
That is why the rights of the Indian peoples, as they have been argued in Canada and to hon. Members here, are an attempt by them to ensure the survival of their own culture. They see their culture in historical terms. They also see it, as the hon. Member for Sevenoaks reminded us so forcefully, in terms of a culture which must survive—a culture for the future and not merely the tradition of a minority. They want to have their place as a minority without surrendering their identity. Arguments for assimilation always arise from majorities—or have done in the past.
Majorities generally are less assimilationist than they used to be. One of our bitter regrets about the attitude of federal and provincial Governments of Canada—most provincial Governments seem to have this attitude, and certainly the federal Government have it—is that at a time when there is a world-wide trend, with majorities having to respond to minorities, and some more positive majorities granting rights of cultural survival to minorities, the Canadian Government still seem to be pursuing a policy which narrows the base of the Indian peoples and nations and in fact reduces them.
One would have thought that in that kind of climate the Canadian Government would be seeking to enhance the rights of the Indian communities, and would be seeking to find ways in which legal forms which have developed orally within Indian legal culture could be adapted to meet the needs of twentieth century codified law. Those are the kinds of issue to which one would have hoped the Canadian Government would be addressing themselves, rather than to the broad issues raised in section 35. We hope that those issues will be open to amendment by the Indian communities themselves rather than by the British House of Commons, or, after patriation of the constitution, by Canadian Governments themselves.
The Indian peoples are not historically an ethnic minority within Canada in the way in which the ethnic minorities within the British State would see themselves. They are not an ethnic minority in the way that the Italian community or the Spanish community or the other communities of people who have moved into North America would see themselves.
I would argue that all minorities, regardless of their arrival in a particular territory, have rights inherent in their being a minority and in having their culture. But I would argue even more forcefully in the case of minorities that are historically, as it were, within their own territory, into which other "immigrants" have arrived and negotiated rights to that territory. Historically, the Indian peoples are

nations in their understanding of that term, and they are seeking a political translation of the term into the structure of government in Canada.
It was in that context that many of us were concerned to re-read the statements of Mr. Trudeau in 1969 in which he was pursuing an assimilationist policy. I was very surprised to find a strange notion of equality put forward in Mr. Trudeau's position in 1969. He seemed to argue that Indians should be equal under the law and should have equality with other Canadians, but that in order to have equality with other Canadians they had to cease to be Indians, or at least to give up part of their heritage. He specified that position. I shall not quote from his statements because the hon. Member for Essex, South-East (Sir B. Braine) has done so, but the notion was that for a minority to become, as it were, acceptable and equal within the majority community it had to give up its minority status.
Recently within Britain we have had to address ourselves towards ethnic minority groups. I commend to the Committee, and to the Canadian Government under Mr. Trudeau—I am sure that he will read the reports of our debates—the statement made in the recent interim report of the committee of inquiry into the education of children from ethnic minority groups in Britain. It refers specifically to education but it applies in social, cultural and economic terms. The report said:
A 'good' education cannot be based on one culture only, and in Britain where ethnic minorities form a permanent and integral part of the population, we do not believe that education should seek to iron out the differences between cultures, nor attempt to draw everyone into the dominant culture.
The authors of that report realise that in Britain it is not necessary for people to give up their own cultural distinctiveness—whether, as in my case, it is the ability to speak a Celtic minority language, or some other characteristic. There is no need for minorities to surrender such characteristics to have equal treatment in a majority community. We hope that that argument will be endorsed by the Canadian Government in connection with the Indian right to hold land and to keep their culture, mode of work, and way of life protected and not encroached upon by land acquisition or by investment and capital developments of natural resources.
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The issue was recently highlighted in the Edmonton Journal of 18 February which described the deals that are going on with foreign investors on the Alsands project, using natural resources in Indian land. I shall not quote the press report in detail, because I am sure that the matter will be familiar to people in North America. The rights of the Indians are already being denied by the Energy Resources Conservation Board. When we read of such cases in the Canadian press, we realise what will happen in Canada unless we ensure the rights of consultation for the Indian community.
I want to say a word about the recently revealed memorandum of understanding between the Government of Alberta and the Government of Canada concerning the Alsands project. The Indian nations regard that as an abrogation of treaty rights and a breach of trust by the federal Government. In these cases, Indians are not being dealt with in a specific manner as national communities. The treaties and all the rights to treaty land and trapping, hunting, fishing and gathering are ignored by this development agreement. Already, according to the


memorandum, in the process of assimilation whereby Indians become "local communities", their special status is
subsumed under the definition of 'Natives' who have no special status or relationship to the Federal Government.
So in those instances of development the rights of the Indians are already being overriden.
Agreements of that kind for the exploitation of natural resources in the Indian community between Alberta, Canada and multinational capital can only result in the destruction of the reserve system and the system of communal land holding. That system will be replaced by individual land holding, which is easier to deal with within the framework of Canadian property law. There is thus an economic political and social incursion into the Indian way of life and the existing structures of the parallel Governments of the Indian nations. The structure of chiefs and councils is being deliberately bypassed and undermined.
The cause of that incursion lies in the investment in the development of natural resources in Indian communities. I represent a national park and a heritage area, and I am therefore concerned about ecological policy. Already we see the exploitation of natural resources. That exploitation is deliberately damaging the environment of the Indian nations. Capital goes into an area, and the result is the destruction of the ecology. The political and constitutional proposals, as often happens with so-called political initiatives, are really an attempt to facilitate the economic exploitation of areas at present under the control of Indian social structures. The intention behind the proposal to bring Indians into "equality" is for their lands and communities to be available for equality of exploitation. In an economy where the main determinant is capital exploitation and where there is a traditional way of life, the latter has to give way and the rights of the community have to be set aside so that the development can take place.
In the amendments we seek to ensure that the Indian communities are drawn into active consultation and have a veto for any changes that take place in the constitution. We seek to ensure that any developments which take place in areas that are controlled by the Indians are under their own control, and that the natural resources there are under their own control. I shall not mention Welsh water, but the issue of the control of natural resources by the local community is a crucial one.
Professor Douglas Sander of the Faculty of Law of British Columbia University showed the way in which various titles to land are interpreted. The Indian aboriginal approach to land tenure, the communal form of tenure, and the Indian understanding of the land holding system always has to be translated into the major Canadian code and into private property rights. So there is not merely a culture clash, but a clash of two different approaches to the control of property and natural resources. The communal approach of the Indians has much to teach us, because we have become privatised and individualised in our approach to property in the community.
In trying to ensure that the Indian minority in Canada has a degree of autonomy and self-determination, we are contributing to the civilising tendency whereby minorities have a special position in the world, whereby they are endorsed and maintained, and not set aside, whether in the interests of multinational capital or of some kind of uniform mass society.

Mr. Richard Body: I shall not follow the hon. Member for Merioneth (Mr. Thomas) except to say that I agree with all his sentiments. What I have to say can be said within a few moments. As I understand it, the proceedings are being reported quite widely in Canada. I hope that no one in Canada suspects that we are trying to interfere with how they should be governed. Some of us resent very much the fact that we should have put before us a draft constitution, because we believe that it is no business of ours to say how Canada should be governed, nor perhaps how the Indian nations should be treated.
However, some of us have had the opportunity of meeting representatives of the Indian nations in recent weeks. We have been more than impressed by the justice of their case. We have all been persuaded that they feel that they have been neglected and not heard fairly or properly. Above all, they have grave suspicions of how the Canadian Government will treat them once the new constitution comes into effect. They support those suspicions with hard facts. Those facts include speeches made by Mr. Trudeau—one of which was referred to a few moments ago by the hon. Member for Merioneth—and the failure of anyone who speaks with authority on behalf of the Canadian Government to meet the Indian peoples to discuss what their rights will be.
I am glad to see my right hon. Friend the Lord Privy Seal in his place. Perhaps during his reply he can tell the House what information he has had from the Canadian Government on this matter and whether they have given any assurances that they will consult the Indian nations and negotiate what the Indian rights will be before the constitution comes into effect—since it will be too late to put matters right afterwards—and to see justice done to the Indians.
We have been told that the Indian nations have representatives in Ottawa waiting to meet representatives of the Canadian Government to discuss the matters. Let us hope that what we have said in the House may do something—perhaps not much—to persuade Mr. Trudeau that he or his representatives should meet the negotiating team now. If that were done, it would be an opportunity to set at rest the minds of the Indian nations and to assure them that their fears are without foundation.

Mr. Bruce George: We are now reaching the closing stages of the third parliamentary day that has been devoted to the Canada Bill. I was highly critical of the indecent haste with which the Government were proceeding and I believed, as a consequence, that the rights of this House and the rights of the native peoples of Canada were being trampled underfoot in the rush. However, I am pleased that the Government have relented and given not one extra day after Second Reading but two. I wish to express my appreciation to the Leader of the House, the Secretary of State for Foreign and Commonwealth Affairs, the Lord Privy Seal and the Chief Whip, because the extra time has allowed us to air serious issues before a wider audience and, as other hon. Members have said, has given the Canadian Government the opportunity to make a real gesture to prove that this House and the Canadian House of Commons can speak to each other and ensure that the movement for human rights has some strength. It means that we can express our interest and concern to fellow legislators and hope that they will pay some heed to what we are saying.
In the two votes, over 70 hon. Members have supported native rights. The Government's vote on Second Reading was 334. It was halved in Committee and perhaps this evening they will be in real trouble. I suspect not, but we are not talking about majorities. We are talking about Members of Parliament in Canada listening to what we are saying, I hope, reading the debates and then acting upon it.
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A Canadian journalist told me recently that he had listened to and watched our proceedings with some anger because he was listening to and seeing foreign Members of Parliament talking about Canadian issues. He was also angry because those Members of Parliament appeared to speak with more authority than do many Members in Canada—those who have spoken. It was a matter of acute embarrassment to the journalist and, I suspect, to many other journalists.
I did not table any more amendments, although I confess that the temptation was enormous. I did not succumb to the temptation. Although my speech will not be as brief as usual, I am not attempting to filibuster and I have no desire to speak on clause stand part. The aim of my speech is to talk not just to hon. Members but to those across the Atlantic. We can be helped by the media in that. A journalist said last week "I am very bored by Canada". It is sad that journalists and hon. Members should be bored, because we are talking about the fundamental rights and freedoms of over 1 million people—when one adds mixed bloods, such as Inuits, to the Indians of whom we are speaking.
When journalists write about the subject, they often use ancient clichés and stereotypes. Many do not write at all. There are some honourable exceptions who regularly report the proceedings, but some resort to ancient clichés. I should have thought that The Times and The Sunday Times would have been more sympathetic. After all, they, more than anyone, can speak with force about a group of people taken over by foreigners, having had their numbers depleted, and being threatened with extinction. The Daily Telegraph could have more affinity with the position. It was the same machinery that it is using now that probably brought to the British public the news of Little Big Horn, the treaties that were signed and certainly military disasters of our own at Isandhlwana. I hope that the press will report our concern.
The amendments to which I put my name are pivotal to the whole issue of Indian rights. We are talking about the process of amending the constitution, which is central to any constitution and especially crucial when one is talking about a federal constitution. I shall argue later that the Indians should be properly consulted, not only at the post-patriation conference but in the deliberations that will take place some 15 years from now. They are important amendments—some tabled by the official Opposition and some tabled by myself and other right hon. and hon. Members—relating to the protections that must be created by the Committee, and, we hope, picked up by Canada, so that any legislation or decisions that are detrimental to the interests of the Indians cannot go through without consent. I shall be talking about the treaty rights and freedoms of Indians that must be protected. If we cannot provide that protection, I hope that Members of Parliament in Canada will belatedly try to do what the provincial

premiers and Mr. Trudeau so singularly failed to do—genuinely to entrench those Indian rights in the new constitution.
Whom are we talking about when we talk of natives? We are talking about 1 million aboriginal, tribal or indigenous people. It may be a simple question but the answer is complicated. There are 13 different legal definitions of a native person, which makes the complexity even more obvious.
When Columbus arrived in North America, he made a number of mistakes. One was to lump together all Indians as one group. The hon. Member for Merioneth (Mr. Thomas) perhaps represents the area from which Prince Madoc departed 1,000 years ago, allegedly to discover America. Unfortunately, he was 19,500 years too late and he disappeared. If he did make contact with the Indians, as legend has it, perhaps the hon. Member for Merioneth and myself can have our affinity with them explained by the fact that perhaps we are distant relatives.
When Canada and North America were discovered—I use the word "discovered" in a constrained form because we are talking about Western discovery of something that was an established fact—the continent was obviously populated by about 100 million people. We are not talking about a barren terrain into which intrepid explorers came, fired a few shots, read out a proclamation, planted a flag and claimed uncharted territory. It was occupied by a people who had a sophisticated form of government.
There were the civilisations of the Mayans and the Aztecs in central and southern America. There was the civilisation and form of government of the Iroquois confederacy. We are talking about a sophisticated structure of government—a federal structure of government. Indeed, the American constitution was to a large extent derived from the experience of federalism within North America.
In the eighteenth century, one Cadwallader Colden said of the Iroquois federation:
Each nation is an absolute Republic by itself, governed in all public affairs of war and peace by the Sachems or old men, whose authority and power is gained by and consists wholly in the opinion the rest of the nation have of their wisdom and integrity.
The Indian governments were in many cases developed. In other cases, the form of government was rather loose. Nevertheless, we are talking about a large group of people. There were Eskimos in the North who occupied a third of the land mass of Canada. The Métis do not have a land base, but despite the hopes of politicians in the last century still have not lost their Indian identity, although legally they are not classed as Indians. There are also the status Indians—the full-blooded Indians—who have occupied most of our attention in these debates.
These people were self-governing and concluded alliances with each other. The Iroquois federation concluded alliances with other Indian groups and foreign countries. The Wabanaki confederacy of New England, the maritime Indians and the Blackfoot and Cree concluded a treaty to cement peace. They concluded treaties with themselves and with foreign Governments that were regarded by the participants as binding and representing sovereign entities.
I want to talk about the reasons for the mistrust, why Indians are demanding entrenchment of their rights and why that can come about by proper consultation and an acceptance of the amendments. In the very early period of


Indian-European contact, the indigenous peoples offered assistance to the intruders—one could call it "accommodation"—in which the indigenous peoples were incorporated into the commercial system and became dependent on foreign companies. Some intermarrying produced the Métis or mixed bloods, and there was also some cultural co-existence. This period of prudent cooperation with the Indians led to the second phase of domination, military conquests in America and the surrender of land in Canada by treaty and arm-twisting consent.
This was the beginning of a period of cultural destruction. It was a policy of isolating natives from white society. It was a policy of gradual assimilation into the English or French language or culture.
The Indians always realised that the eventual goal of government policy was assimilation. There were attempts at assimilation—or termination as it was called south of the border—terminating 20,000 years of history and culture so that Indians would become the unwilling victims to be thrown into the melting pot. Part of the "superior race" philosophy was "Civilise the savage". The savage, if he is to be called that, was not civilised. He wished to have a foot in both societies. He wanted to be part of his indigenous society while retaining the link with the new society. That is something that any sophisticated society such as Canada should be pleased to support.
Thus, the policy of assimilation reached its high spot in 1969, and we have heard what both Mr. Chrétien and the Prime Minister have said. The policy of duplicity and subterfuge—the termination policy that we have seen in the past—has resurfaced. We shall be either the willing or unwilling tool of this process of cultural and linguistic genocide. The Canada Bill is the means by which the Indian culture, its lifestyle, its institutions and the rights enshrined in the Indian treaties will be undermined and systematically destroyed.
A picture in my home has always made a deep impression on me. It depicts an Indian on a pony. The Indian is bowed and the pony is weak. It symbolises that period of Indian history when the spirit was almost broken. We can read about that in a book entitled "The Vanishing Race".
I refer hon. Members to a book regarded by many as the seminal work on Indians. It is Diamond Jenness's "Indians of Canada" which was written in 1934. It has run to seven editions, the latest in 1977. That so-called seminal work—

The Chairman (Mr. Bernard Weatherill): Order. I am sorry to interrupt the hon. Gentleman, but he is straying wide of his two amendments, Nos. 40 and 41, which do not relate to the subject he is now discussing. Perhaps he will address his remarks to the amendments.

Mr. George: Today of all days I have no desire to thwart the Chair. I had thought my points were in order. If I might come very quickly to the point I was seeking to make, it was that before one could look at the actual amendments one needed to look at who were to be the participants. In the amendment mention is made of "aboriginal peoples"; I was simply defining who would come within the conference, the post-patriation conference and the consultation 15 years from now. I had thought, therefore, that this was one of the elements. The second

element was why Indians feel the need to be consulted 15 years from now and the need to have their rights entrenched.
So, whilst I appreciate that it might look as though I was going off at a tangent, I believe I was not. Nevertheless, I will make even more strenuous efforts to keep within the scope of your directive, Mr. Weatherill.
Without appearing truculent and incurring possible wrath, the point I was seeking to make was that Jenness said that it was not possible to determine what would happen to the Indians. They would probably die out. He went on:
Doubtless all the tribes will disappear. Some will endure a few years longer, others, like the Eskimo, will last several centuries. Some will merge steadily with the white races … Certainly they have already contributed everything that was valuable for our own civilisation.
That is absolute nonsense. Jenness's predictions proved to be totally wrong because these people have not died out, they have survived, and they are coming here to seek from us the means by which their culture, language, and institutions can survive into the future.
We have to ask what is to be done to protect native peoples, their rights and freedoms, their institutions and culture. First, there must be real participation by native people in conferences—the post-patriation conference and the conference 15 years on—and a number of amendments that I put down previously—Nos. 34, 35, 37, 38 and 39—related to that. Secondly, an aboriginal rights commission is needed to determine what the rights are to be and to settle land clearance; amendments Nos. 39, 40 and 44 related to that commission.
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Thirdly, Indians must have a real role in the conference 15 years on. Amendment No. 40 deals with that. Fourthly, it is necessary to amend the amending formula to ensure genuine consent before decisions are made by the Canadian Government that adversely affect the native people. Fifthly, there is a need to strengthen the power of the governor-general and not to endorse the view of this constitution that the royal proclamation of 1763 becomes a dead letter.
The sixth thing that needs to be done—this is a battle that was lost on a previous amendment—is to bring about the re-introduction of a clause that deletes the word "existing" from aboriginal rights. Lastly, we need lb devise amendments so that future legislation that may adversely affect native rights will not be feasible.
The Indian peoples have a great deal to offer our civilisation, a great deal that they have developed for us in the past. What they need from us is protection for their lifestyle. There is no way that any society can be totally immune from the pressures surrounding it but obviously it has to devise a structure to allow it to co-exist with a different lifestyle and a different culture, which is what most of the native peoples wish to see.
They wish to have their rights preserved. What are these rights? As one judge has said in the Calder case, when the settlers came the Indians were organised in societies and occupying the land as their forefathers had done for centuries. Aboriginal rights are much broader than simply land title and title to hunting and fishing; indeed aboriginal rights would include native law and government. Those rights were embodied in the royal proclamation. What the proclamation in 1763, and the St. Catherine's milling case two centuries later did, was to


make clear that rights could be extinguished by the Sovereign. In fact, they have been extinguished by the Government of Canada and the process continues. After 400 years of international law the concept of aboriginal rights cannot be cast aside, which is what the constitution of Canada seeks to do.
If there is to be extinguishment of aboriginal title—and my amendment seeks to prevent this—it must be done with genuine consent and generous compensation. However, there is real evidence that the federal Government of Canada is granting leases to companies to explore aboriginal land without the aboriginal people's consent. The Indians have a very good case for compensation for lands taken in the past, and I shall discuss this shortly.
Aboriginal rights are broader than simply treaties, but the treaties with which we deal in amendment No. 41 were regarded by the Indians as solemn, binding, sacred and perpetual. The first was signed with the Indians in the maritimes in the 18th century. Those which we are debating further tonight were signed in the nineteenth century and early twentieth century. These were the so-called numbered treaties.
According to Lord Denning, the Royal Proclamation of 1763
was ranked by the Indian people as their Bill of Rights".
He said:
To my mind the Royal Proclamation of 1763 was equivalent to an entrenched position in the constitution of the colonies in North America
because it formalised the procedure for the Crown to "purchase" land from Indian tribes.
Those treaties were not always written down, which causes us problems today. There are many examples of treaties agreed on by word of mouth. The Indians have a far stronger memory of what the treaties contained than the Canadians or the British with whom they negotiated.
The Indian view of the treaties has often been overlooked. They were entered into with the Queen and her successors by sovereign nations. There are those who outline in detail, from American and Canadian sources, the fact that these treaties were within the confines not of constitutional law but of international law, but that is a matter of some further debate.
The Indians who made the treaties that we are talking about were in a weak bargaining position. The negotiating representatives of the Crown had the diplomatic skills, and they provided the interpreters. The Indians had no written language and lacked familiarity with the law. It is not surprising that the treaties were one-sided.
Despite the existence of the treaties, the Indians' rights have been encroached upon with monotonous regularity. The status of treaties has been downgraded. In the case of R. v. Syliboy in 1929, the judge said:
Having called an agreement a treaty, and having perhaps lulled the Indians into believing it to be a treaty, with all the sacredness attached to it, it may be the Crown should not be heard to say it is not a treaty.
But in Canadian law if a treaty conflicts with statute the courts are bound to apply the latter against the former, and this is causing considerable problems.
The treaties that the amendments seek to perpetuate are vital for Indians. Although the federal Government have not always acted maliciously, interpreting treaties against Indian interests, the Indians rightly feel that the federal Government view their obligations as a political trust

rather than a sacred one, stemming from a belief that the treaty process was a legal rationalisation of the crude political realities implicit in that process, the philosophy being "Either you lose your land with treaties or you lose it without them."
Other crucial cases have already been referred to. There were Hamlet of Baker Lake v. Ministry of Indian Affairs; R. v. Sikyea; and R. v. George. In all of them the judges commented unfavourably on the way in which treaty rights had been extinguished and aboriginal rights had been overturned.
There are so many instances that I do not wish to bore the Commmittee by outlining them. Suffice to say that one issue in particular that has bothered the Indians is the Rupert's Land case. The Indians say that it is vital that the British Government try to compel the Canadian Government to honour the Rupert's Land claim, which discriminates against the Indians. The Indians are asking that this be done while the Bill is going through Parliament.
There are many instances of legislation—the Game and Fish Act, the Gas and Oil Leases Act and the Petroleum Resources Act—in which Indian interests have been overridden. Those interests must be protected. Aboriginal rights must be protected within the new constitution, as must the sacred treaties. The Indians' culture, language and traditions must be continued, and must not be extinguished by Canadian federal Government action.
How will these amendments help to secure aboriginal rights? Is it not important that Indians are involved in the consultative process? I spoke at length in the previous debate on the bogus consultations to date and also produced an affidavit signed by the President of the National Indian Brotherhood which stated that the Indians had not been properly consulted. I also spoke about proposals within the constitution for this so-called "conference" to occur a year after our proceedings are completed. I put down amendments Nos. 33 to 39 inclusive in an attempt to remedy the grotesque inadequacies of the so-called "accord" which was previously called "political blackmail", "larceny", "treachery" and "a denial of basic justice; the latest in a long line of broken promises". Mr. Chrétien described the so-called "accord" between Mr. Trudeau and the provisional Governments as "quintessentially a liberal compromise".
I do not intend to deal with the amendments relating to the first conference. Amendments were put down for the Aboriginal Rights Commission which would certainly allow the Indians, if they were unable to make an impact at the first conference, to have some of their rights properly accorded. Mr. Trudeau clearly expressed his view to the Canadian Parliament that, when the constitution's responsibility was passed to us, that Indian rights were entrenched. He said, in the Canadian Parliament on 27 November 1981:
It is true that with regard to the two amendments, one concerning women and equality between the sexes, and the other concerning aboriginal rights and the entrenchment thereof in the constitution, the Minister of Justice did support changes.
Mr. Trudeau apparently genuinely believed that aboriginal rights were entrenched. He either believed that or sought to confuse. Anyone considering clause 35 will know what has happened. The Prime Minister of Canada gave way to provincial pressures on aboriginal rights. People will believe that Mr. Trudeau is either deluding


himself or others when he says that aboriginal rights are definitely entrenched. They are definitely not entrenched. Some of our amendments endeavour to include provisions in the Canadian constitution that should have been in it originally—rights of Indians that precede the Canadian political system.
Considering the amendments that seek to protect those rights, it is apparent that we are concerned with land claims. That is a subject of great confusion within Canada and on which the Indians' position has been consistently diminished. The cards are stacked against them on a regular basis.
The amendments are designed to allow Indians, with their land bases, control over and under the resources. It is only with that sound economic base that they can end their dependence on federal Governments and perpetuate their language and culture.
After patriation, the protections bestowed on Indians, although imperfect, by the governor-general, the royal prerogative, aboriginal title and the treaty protection, will all be swept away by the amending formula. That formula will place the Indians in an even weaker position because land may then be transferred to the provinces.
Anyone with a minimal knowledge of provincial Governments in Canada knows full well what will happen to Indian land if the provincial Premiers get their hands on it. Therefore, it is vital that our amendments are able to stop legislation affecting Crown obligations.
Section 50 in schedule B would confer on the provinces exclusive powers of legislation and taxation over "nonrenewable" resources. The words "on the provinces" do not exclude Indian reserves.
According to the amendments the Aboriginal Rights Commission will determine compensation fairly. We have looked at the Indian Claims Commission of the United States, which is infinitely superior to the Native Claims Office in Canada, where few of the disputed claims have been resolved. It is operating within the parameters set down by the federal Government. Therefore, the Aboriginal Rights Commission will determine compensation fairly, not the Canadian Government, which has secret documents. That suggests that the framework of compensation should be determined by parliamentary committees. We have seen from the example of section 34, which became section 35, how little Parliament can do to protect Indian rights.
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The secret document mentions negotiation for claims, but so far the negotiations have proved disastrous. Although the federal Government likes to elevate the James Bay agreement as a model to be pursued for the native peoples, the solution provided by negotiation as laid down by that model is not to be followed. If anyone thinks that the courts could act as mediators, they should know that the Indians think that that is not feasible. Therefore, the dangers for Indian and aboriginal peoples inherent in section 50 are clear and evidenced by the notorious McMurtry letter, which shows that Indians can have little faith in provincial government. Hence there is a need for amendments to section 50 because the cards are stacked against the Indians.
When one looks at the amending process, one sees that the amendments relating to part V of schedule B that I have tabled and that other hon. Members have tabled relate to the formula for amending the constitution, which is

absolutely crucial because the amending process is at the heart of any constitution. It is pivotal to the whole federal structure. It is in the scope of the amending formula that the Indians are most vulnerable. Their rights have been eroded already, even with the constitutional protection that the Crown could give.
I remember listening to Lord Denning reading out his judgment and the emotion in his voice. He believed that in future the Crown could provide the protection that the Indians are demanding and for which they are pleading. Lord Denning's knowledge of the law is infinitely greater than mine. My knowledge is greater on Canada than on other areas of the constitution and the law. Lord Denning's faith in the future and in what the Crown can do in Canada is sadly misplaced. We are now seeing the dishonourable process in Canada of reneging on legal and moral obligations. That reneging process will be accelerated by what we shall do over the next few weeks in the Committee and in another place.
It is not those who have sounded warnings, but those who come and vote and have not taken as much interest as we have who are conniving in a process of assimilation begun hundreds of years ago, which was never completed. I and others will argue that the constitution that we are passing is the mechanism by which the process of assimilation can be accelerated and completed. Therefore, the aspirations and hopes of assimilation of those in Canadian Government, which were thwarted in the past, ride again.
The treaties that were held sacred, but that at present provide some obstacles to the present Government, will be swept away and will become an irrelevance. With that will go aboriginal land titles and ownership of resources. One should contrast the landgrabbers in buckskins of the nineteenth century or the coonskin hats of the century before with the landgrabbers in pinstriped suits in Ottawa and the provinces today. The greater sophistication that education, computers and legal advisers bring does not mask the fact that the process taking place today is even more heinous and disreputable than that of the last century.
The Canadian Government know that with this constitution they can resolve the "Indian problem" That can be done by section 35, which has already undercut the concept of aboriginal rights by bringing in the nasty word "existing". To the outsider that may seem a superfluous word, but it is fundamental to aboriginal rights. The accord and the inclusion of the word "existing" in section 35 are part of the process of the destruction of Indian rights.
After patriation, the amending formula can achieve all that the federal and provincial Governments desire without any Indian, Inuit and Métis participation or consent. For the first time, those Governments have an authentic legislative mechanism that is unimpeachable before the Supreme Court of Canada. It is judge-proof. The Queen's representative in Canada, the governor-general, will be powerless to intervene, as he can now, if the federal Government act unconstitutionally. The federal Government are seeking to cut the powers of the governor-general and to eliminate what Lord Denning regarded as the Indians' bill of rights—the royal proclamation—and we are conniving in that process.
For the Canadian Government, the role of the Indians, 15 years after the first conference, as provided by amendment No. 40, does not exist. We must alter the amending formula. Where aboriginal rights are affected,


Indian consent must be secured. The native peoples must play a vital part in the first post-patriation conference. As we know, they will be there merely as observers. They might just as well watch the conference on television for all the impact that they will have on the proceedings. They will be there for one part of the proceedings. Busy men will probably spend a few days on the Indian position, go in with fixed ideas and wheel and deal as they have done before. One needs only to examine the events leading up to the accord to see how well they can do it. The Indians will be worked over yet again.
Section 49 provides:
A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within fifteen years".
There is no mention of the Indians, even as observers. At least they are included as innocent bystanders in the first conference, but there is no mention of them in the conference 15 years later. Where are they? Why are they not there, even as observers? Is this the culmination of the process of assimilation? Does Mr. Trudeau believe that, after the failures of 1969, the Canadian Government at last have the machinery to incorporate the native peoples into the mainstream of Canadian society? Those who wish, can be incorporated, but for those who do not it is deplorable that this constitution will accelerate the process. It gives the game away by not including the Indians, even as spectators, because that implies that the "Indian problem" will have ceased. The process of assimilation would have culminated by then.
Fifteen years from now the actors in the drama may not be the same. Mr. Trudeau will be nearing 80 and will probably have retired, as, one hopes, will the provincial Prime Ministers, most of whom do very little to advance Indian rights. But let us imagine that the same actors could jump into a time machine and go forward 15 years, and make decisions then as they have now. They have certainly shown themselves to be masters of nefarious tactics. Are Peter Loughheed, Stirling Lyon, Bill Bennett and Richard Hadfield the people to advance Indian rights? I hardly think so. One could go right through the list of provincial Premiers. There is Mr. Buchanan. There is Bill Davis of Ontario—Mr. McMurtry's boss. It is no wonder that the Indians are suspicious. They wish to be at that conference 15 years from now, because the sons of those people may be Prime Ministers.
In dealing with a constitution, one is entitled to look at the bottom line. The Indians are not there. The amendments seek to put the Indians at that conference, and that change should be achieved.
Part V of the Bill is the legislative culmination of the policy of assimilation. Before patriation, assimilation could not take place, but section 38 provides a formula whereby any constitutional change can be achieved, still further diminishing the worth of the guarantees supposedly provided for the aboriginal people.
Even section 35, defective though it is, would be prey to amendment under the formula and could be weakened still further. The treaties, the questions of land title and land claims are all vulnerable under the amending formula by federal and provincial agreement.
Section 41, unlike section 38, lays down requirements for unanimity of the provinces and the federal Government

in certain spheres, but there is no mention of amendments affecting aboriginal peoples and the involvement of those peoples in such changes. Their consent is not sought.
In Britain, over the centuries, even before the emergence of democracy, any decisions taken by Governments without active consultation with groups affected have been seen by those groups as being on the very margin of legitimacy. The Indians will see the conferences and the deals in that light. What legitimacy can be bestowed on agreements when native peoples are denied access? The frustration that this will generate will cause problems for future generations in Canada, not just for the native peoples but for the Canadian politicians now rather smugly viewing their handiwork over the last couple of years.
Despite assurances from the Canadian Prime Minister and Mr. Chrétien, there is no entrenchment of aboriginal rights. Section 35 has seen to that. Indeed, the identification and definition of aboriginal rights under section 37 will settle those rights. I have already mentioned the jury that will settle those rights—the Hadfields, the Davis's, the Bennetts, the Loughheeds and the Lyons of Canada.
There must be legislative protection against part V and the amending formula being used, as they undoubtedly will, against Indian interests. The amendments in my name and that of the hon. Member for Essex, South-East (Sir B. Braine) provide that no amendment can be made to the constitution affecting aboriginal treaty rights and the rights of Indian peoples outside treaty rights unless assented to by the aboriginal peoples themselves. We have laid down who shall be the representatives among the status Indians, the mixed bloods—the Métis—and the Inuits. It must be laid down by those who will participate. They must not have to rely on a Prime Minister of Canada playing off one group against another.
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The other amendments are important. I have mentioned the Aboriginal Rights Commission and, in the amendment to which I have just referred, the governor-general is crucial in this process. But his powers are being stripped away. Those powers were not debated in the Canadian legislature, because the closure was moved before they could be debated.
Lord Denning saw the governor-general as guaranteeing Indian rights. At present, the governor-general is expected, under conventions determined at the imperial conferences between 1926 and 1930, to take the advice of the Privy Council in the Canadian Cabinet. If that advice is unconstitutional, he can veto and exercise his prerogative. That was done as recently as 1979 when Mr. Trudeau sought to make legislative amendments that would change the power of the Senate. The governor-general referred to the Supreme Court the legislation under section 55 of the British North America Act, and the Supreme Court ruled this unconstitutional.
Under section 48 the governor-general would not be able to veto changes brought about by the amending formula, so his prerogative will be diminished. The Indians will have no protector and their rights will be diminished as a result of the gelding of the governor-general. The royal proclamation, held up as so essential to Indian rights by Lord Denning, is prey to the amending formula. Section 52 of the Canada Bill talks about the constitution of Canada being the supreme law of Canada


and lists what is within the constitution of Canada. That section does not include the "Indian Bill of Rights", The royal proclamation of 7 October 1763. Amendment 30, which regrettably has not been called, would have resolved that problem by including within the constitution the royal proclamation of 1763.
The last point that needs to be made to protect the Indians is that we must stop future legislation being introduced that adversely affects the Indian peoples. Any section of the Bill affecting native peoples is at risk under the amending formula, because new legislation could be introduced with disastrous effects.
We have heard that there will be a new Indian Act. The present one is a disaster. The new one could be even worse. It would affect entitlement to land, it could affect Indian government and it would affect Indian rights to compensation. It would also affect hunting and fishing rights. Hence, the need for an Aboriginal Rights Commission to protect the Indians.
I shall briefly examine what the Indians are asking for. Where will they be 15 years from now? Will their legal rights have been extinguished, or will the renaissance that many of us have observed be continued? In Canada there is a clear and growing self-confidence among native peoples. Their aspirations are legitimate and must be assisted. If they are thwarted, the Canadian Government can only put a lid on a steaming saucepan. That lid will come shooting off at some stage in future.
I hope that self-determination will be seen by most Indians as being within the Canadian federation. The Eskimos are asking for a separate province—Nanuvat—which occupies about one-third of Canada above the tree line, but they are asking for it within the Canadian federation. The Indian people are not content with a municipal government solution. The paternalism of the Ministry for Indian Affairs has created and perpetuated this feeling of isolation and inferiority.
The Indian Acts and the Indian Affairs Department need to be either abolished or substantially reformed. The policy needs to be altered. In 1974 George Manuel, a former president of the National Indian Brotherhood and a joint founder of the World Council of Indigenous Peoples, said:
The fastest way to bring about changes amongst an oppressed people is to put the decision making authority and the economic resources that go with it into their own hands.
Self-determination should not be anathema to the Canadian federal Government. A United States politician, who is not renowned for his radicalism, said:
Self-determination among the Indian people can and must be encouraged without the threat of eventual termination … This then must be the goal of any new national policy towards the Indian people—and we must make it clear that Indians can become independent of federal control without being cut off from federal concern and federal support.
That was Richard Nixon in 1970. That was a stirring advocacy of a policy of self-determination.
For five centuries the Indians in North America have been fighting defensively for their right to exist, their freedom, their land, their livelihood, their organisation in societies, their beliefs, their way of life, their personal security and their lives. The events of the past 300 years may be seen as a brief interlude in a 20,000-year history.
Chief Crowfoot, of the Blackfoot tribe, said:
What is life? It is the flash of a firefly in the night. It is the breath of a buffalo in winter time. It is the little shadow which runs across the grass and loses itself in the sunset.
The past 300 years of white domination in Canada must be seen against a backcloth of 20,000 years of Indian history and institutions. I desperately hope that Indians in Canada will achieve that to which they are entitled morally, legally and constitutionally. I hope that the problems are resolved in Canada, which is where they should be resolved. Surely it is humiliating for Canada that the problems of the Indian peoples have to be aired in a legislature thousands of miles away. I hope that the endeavours of hon. Members, who will become informed on the subject, will not be seen as a superfluous exercise. I desperately hope that the recommendations and exhortations that we are making will not fall on completely deaf ears in Canada, and that the Canadian Indians—the Canadian natives who were in Canada 20,000 years ago—will achieve that to which they are entitled

Sir Bernard Braine: I indicated earlier to the Chairman of Ways and Means that I should like to speak to my amendment No. 41. I shall not delay the Committee unduly.
We are considering possible safeguards to ensure that the native peoples of Canada are consulted and that their consent obtained to changes which affect their treaty and aboriginal rights. Part V of schedule B concerns the procedure for amending the constitution. It is the heart of the constitution. Within it lies the means for amending the charter of rights and freedoms contained in part I. Section 35, which purports to affirm native rights, as the right hon. Member for Down, South (Mr. Powell) pointed out, stands ominously alone in part II of schedule B. That section has already gone through a process of amendment during the course of the secret and somewhat doubtful dealings which led to the agreement last November between Prime Minister Trudeau and the Premiers of seven of the eight dissenting provinces. It can also be further emasculated, or deleted, under section 38 of part V.
Part IV of the schedule, which contains the sole reference to possible consultation with native interests, will have automatically disappeared long before the review under section 49 takes place. It is Part V of the schedule, at the centre of the constitution, which will decide the future of the native peoples of Canada.
We must face the fact that we may not succeed in carrying our amendments. Not only are our Government determined to do the bidding of the Canadian Government but many hon. Members are reluctant to do that which justice cries out for them to do. They feel, not unreasonably, that the task should be carried out in Canada.
If that is so, it is essential that the Committee should place clearly on the record the deficiencies of the constitution we are being asked to enact. The record should also reveal the reluctance, nay, the revulsion, of many hon. Members at being party to placing this measure on our statute book. Not only does the Bill put us in breach of our international obligations to protect the rights of minorities but I fear that history's verdict will be that we, albeit unwillingly, have endorsed legislation which breaches obligations that are binding on the Crown.
This is an odd debate. We are talking not to ourselves but to people across the Atlantic in Canada. They must be told of our reluctance. They must be left in no doubt about the reasons for our revulsion. The Minister of State and his colleagues must be given a last opportunity to pause and


reflect, and to convey the Committee's feeling to the Canadian Government before the Bill goes to another place.
The Committee's duty becomes even more compelling when we consider the circumstances in which the Canadian Parliament passed the resolution of which the Bill is a carbon copy. The official record of the Canadian House of Commons shows that the debate on the resolution was concluded before any discussion had taken place on the final, and perhaps most important, sections of part V. Section 49, to which my amendment is addressed, was not even discussed, nor was section 48. That has special significance in relation to the discretionary powers of the Queen's representative in Canada. That section was the product of the bargain struck less than a month before between the Canadian Prime Minister and nine of the 10 provincial Premiers in which Indian rights were sold down the river.
Those sections of part V of the schedule which are of great significance to the future of the Canadian people, were not debated by their elected representatives. For whatever reason, the Canadian Government were not prepared to allow an extra couple of days to debate some of the most vital provisions of a new constitution which had taken long years to agree. The duty of the Committee is clear. We must complete the task which our Canadian friends were unable to finish. I therefore pose the following questions. How is part V devised? What can it achieve? How should it be amended?
The present Canadian constitution is founded upon the consent of the native peoples. Enough has been said of the royal proclamation and treaties to establish that beyond question. My argument throughout has been that those constitutional obligations persist today. Yet Prime Minister Trudeau's speech in 1969 in Vancouver and all succeeding policy statements by his Government and the Governments of the provinces lead us to the unavoidable conclusion that treaty and aboriginal obligations are not going to be allowed to stand in the way of assimilation of the native peoples, the termination of their land rights and of their right to self-determination. By the time that section 49 comes into operation any constitutional need to consult the native peoples will have passed into obscurity. Section 38 of part V provides the means for amendment or deletion of sections 25 and 35 without the consent of the native peoples, or even consultation with them. If therefore any native rights survive at all, they will be as defined by the authors of the assimilation policy and the provincial Governments who want to control Indian resources which have previously been outside their legislative control.
9.15 pm
The identification and definition of native rights arrived at in section 37 (2) will provide the sole guidance for the Canadian courts. That definition will have replaced the constitutional obligations set out under the royal proclamation and the Indian treaties. Under section 52, the Supreme Court of Canada will be powerless to remedy any breach of faith which may arise from the operations of the amending formula under section 38.
Under section 48, any breach of Crown obligations under the royal proclamation or the treaties will be incapable of remedy under the royal prerogative. Under the section, the governor-general is powerless to exercise

his discretionary powers, irrespective of the circumstances. Despite the impressive statement of Mr. Munro, the Minister for Indian Affairs, in February 1981, native rights will not be entrenched to the same degree as the other fundamental provisions of the constitution, including the office of the Queen, who, as Mr. Munro rightly said, the native peoples have always regarded as the symbolic protector of their rights and freedoms.
Native rights and freedoms will not be protected, as the office of the Queen is protected, under section 41. Under section 38, they will be prey to the combined will of the Federal Government bent upon a policy of termination of Indian title, and to seven out of 10 provincial Governments who will now obtain through the usual political bargaining processes the power, for the first time, to achieve control over native resources and community government.
The royal prerogative is a sensitive subject. There is none more delicate nor, at the same time, more important to our constitution. I hesitate to comment upon the position of the Queen with her Ministers in Canada. But we are considering our Bill, and we have both the right and the duty to consider how it leaves the role of the Queen's governor-general in Canada.
We are all aware of the Monarch's residual powers and of the role of her representatives in the independent nations of which she is Queen. Let us reflect for a moment on the part played by the Crown's representatives overseas. They should act impartially, in a manner untainted by party politics, and in the interests of the nation as a whole. In Canada, there has been more than one instance in which the governor-general has seen fit not to follow his Minister's advice. Lord Byng refused a dissolution in 1926 with the result that the Canadian Government had to resign. One learned jurist has said that Lord Byng acted improperly. Others have disagreed.
The imperial conference of 1930 suggested that the governor-general should follow the advice of his Ministers, but in Canada there have been other departures from that convention, if indeed it was one. The hon. Member for Walsall, South (Mr. George) reminded us that the Canadian Government's proposed legislation would change the role of the Senate. The governor-general exercised his prerogative and referred the matter to the Supreme Court of Canada under section 55 of the British North America Act 1867. The Supreme Court ruled that the proposals that he had exercised his discretionary powers to challenge were, indeed, unconstitutional. It is perhaps significant to the way in which part V of schedule B is drafted that the present governor-general of Canada has stated publicly that if the Canadian Government had proceeded with their first unilateral resolution last year he would have exercised his prerogative and disallowed it.
The Committee should be under no illusion as to the effect of part V of the schedule. Under section 48 the Queen's representative in Canada would be powerless to do in the future what he has done, and what he has said he would have done in the past—exercise his prerogative to frustrate unconstitutional proposals. Section 48 puts his role beyond question. He will be an automaton, and he will nod forthwith at his Ministers' commands. That is a matter for Canadians and I make no further comment.
Is this not a decision of sufficient constitutional importance to have merited at least some debate by the Canadian people's elected representatives? There was no debate. The Canadian Parliament did not debate that basic constitutional point. However, that is not all that causes


the Committee and me grave concern. The issue of the royal prerogative affects the Queen. Granted, it concerns her as Queen of Canada, but the Committee cannot ignore the fact that this is British legislation and must necessarily affect the Queen in Parliament. I regret—as no doubt do many of those who are uneasy about this aspect of the Bill—that the Government, who have a clear duty to ensure that the Queen is given the best advice available, have refused to respond to the wise suggestion made by the hon. Member for Hackney, Central (Mr. Davis) that the question should be referred to the Judicial Committee of the Privy Council.
Why are the Government in such haste and why are they determined to put expediency before their duty to the Queen? I ask that question, but alas, answer there is none. However, I still live in the hope that we shall receive a reply. I have great faith in the Minister of State, but I doubt whether he will be able to answer that question.
Amendment No. 41, which stands in my name, would preserve a discretionary role for Her Majesty's representative in Canada and will preserve his role in respect of the Crown's solemn and binding constitutional obligations towards the native peoples of Canada. Those obligations of the Crown are otherwise severely at risk and we would, I fear, be more than likely to see them breached in the Queen's name if my amendment is not accepted. The proposed section 49B provides that no proclamation may be made by the governor-general where amendments to the constitution that affect native rights do not have the consent of the native peoples' duly authorised representatives.
Nothing could be more appropriate. After all, as Lord Denning said, it is the governor-general who represents the Crown whose promises to the native peoples must never be broken. It is he who has and should continue to have executive responsibility on behalf of the Crown, and that responsibility is to uphold—as Mr. Justice Cartwright of the Supreme Court said—the honour of the Sovereign.

Mr. J. Enoch Powell: In his charity, the Chairman decided that amendment No. 61, which stands in my name, could be taken into consideration, together with the four other amendments.
The amendment is a poor little thing. It merely proposes to leave out the word "within". It stands no comparison with those large amendments, covering pages of the Notice Paper, which have been the subject of so many speeches—I was about to say "read", but I hastily substitute "delivered"—to the House during the past three hours. Nevertheless, whether the word "within" remains is of some slight importance. Many people, including many in Canada, who have read part V are under the impression that most of the constitution is safe from amendment—other than in accordance with that part—for 15 years. That will not be so if "within" remains in section 49.
The word "within" means that there can be a review at any time not from tomorrow, but from the near future onwards. The phrase "fifteen years" is perfectly meaningless when prefaced by the pronoun "within".
As we go on through the Bill, my fear deepens that we are engaged, largely innocently, in perpetrating a fraud. The fraud consists in persuading large numbers of people and interests in Canada that our passing this Bill will

entrench—whatever meaning may be attached to that—certain rights on their part and will entrench certain portions of the future constitution.
As we go on, and as we study the Bill more closely, it becomes clear that that notion is false. It becomes clear that the reason why we are being put through this farce of both patriating the right to legislate for Canada avid legislating for Canada is to deceive as many Canadians as possible into the notion that even in the future, after the constitution is patriated, it will be appealable, it will be justiciable, it will have a certain sacrosanct character—at any rate within the apparent terms of the schedule to this Bill.
That is a fraud. Innocently or not, understanding it or not, both the Government and the House are assisting in perpetrating that fraud. Part of the truth of that is in the words of the subsection to which my amendment relates. It says:
A constitutional conference … shall be convened by the Prime Minister of Canada within fifteen years
in order to review the provisions of part V. It does not say what happens after that. It just says that there shall be a conference to review the provisions of part V. What is the point of a conference to review the provisions of part V either next year or 15 years hence if the provisions of part V cannot be changed? By definition, if the provisions of part V are changed—and I am still awaiting a reply on this from the Minister, which I am sure he will courteously give me even if the provisions of part V are exclusive—and I cannot read them that way—it would still mean that there was a power in Canada after the review to amend the constitution otherwise than in accordance with part V.
Nothing whatever in part V and therefore nothing whatever in the constitution, is entrenched. If there is a power in Canada to make those amendments after a conference of the federal Prime Minister and the ten Premiers, where is that power at other times? It is not created by this section. It is not mentioned in this section. It is not brought into being by this section. It is treated as existing—and, of course, it will exist—and that is what the Canadian Parliament is about.
It is strange that if one asks the Government the same question long enough they will surely give the answer in the end—and a truthful answer. Indirectly, perhaps unintentionally, I do not know—and I do not mean that in any derogatory sense—the Minister answered one of the most important questions in citing the preamble—citing preambles is in fashion on this Bill—to the Address to Her Majesty which brought the Bill before us. It says:
AND WHEREAS it is in accord with the status of Canada as an independent state that Canadians be able to amend their Constitution in Canada in all respects".—[Official Report, 23 February 1982; Vol. 18, c. 825.]
We have been told. We are allowed to read the preamble even to an Address to Her Majesty. We know what we could have deduced from some of the provisions of this schedule—that there is, in the view of those who sent this proposal to us, from the moment of the patriation of the Canadian constitution, a right in Canada, as an independent State, to be able to amend its constitution in Canada "in all respects".
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Let those words be understood and pondered by those deluded persons, whether Indians or otherwise, in Canada who imagine that they are getting an entrenched


constitution; who imagine that they are getting entrenched rights; who imagine that by any amendment whatsoever of this Bill—I shall vote for the amendments as a demonstration—there can be, to quote the words of the hon. Member for Walsall, North (Mr. George), genuine entrenchment of rights, or that the demand of the Indians for the entrenchment of their rights can be achieved. It cannot be achieved.
There is a reminder of that fact in the wording of this section. My amendment removes only one small bit of spoof—the illusion that there is a 15 years moratorium. [Interruption.] That is the illusion which is intended to be created by the present wording of section 49, which my amendment would change, but no amendment that we can make, if we patriate the constitution at all, can entrench anything in the constitution of Canada when the constitution of Canada has been patriated.
I ask myself and I will answer one last obvious question: how comes it that the Canadians can be so simply led by the nose as to imagine that by this legislation being passed through this place it can become an entrenched constitution, it can become a justiciable constitution, it can become a constitution rather like that of the United States? The answer is that Canadians, and their fathers before them, have lived all their lives with a written constitution, the British North America Act, which was justiciable, and which, in relation to Canada, was as if it were the constitution of the United States in relation to the legislation of that country. It is because of that habit that they have been able to be deceived to the point of thinking that they are getting an entrenched constitution, a charter of rights, and that anything can be done to prevent the will of the Canadian people, against which I have nothing to say—the will about which they informed Her Majesty and us that
it is in accord with the status of Canada as an independent State that Canadians be able to amend their Constitution in Canada in all respects".
The case against the Bill is that it is participation in a deceit. For my part, I wash my hands of it.

Mr. George Robertson: Nearly four years ago, when I came into Parliament for the first time and made my maiden speech I had the honour of being followed in that debate by the right hon. Member for Down, South (Mr. Powell), to whom fell the responsibility of commending and complimenting this new Member of the House. He said some very complimentary things about me then and expressed the wish that he would hear from me again.
I have to say, following the right hon. Member this evening, that I fail to understand quite a lot of what he has said. Perhaps in the four years in which I have followed his wish to hear me more often, I have not yet sufficiently come to terms with the intricacies of the constitution on which he speaks with such obvious authority.

Mr. J. Enoch Powell: It is too simple.

Mr. Robertson: The right hon. Gentleman says that it is too simple. That can often be as great a problem for hon. Members as when the issues are too complex.
This evening we have gone over much of the ground that was covered in the first two days of debate on the Bill. That is no fault of the Committee or of the House. Indeed, it is an example, both to us and to people outside, of how

debates should take place on important constitutional matters. The question of whether the British House of Commons has the right to go into such detail on points of domestic interest to the Canadian people is one that will not be resolved here. The sincerity of those who hold views on the issues that we have discussed today and on the two previous days is beyond question. Their authority and eloquence have spoken strongly on issues primarily concerned with the aborignal peoples of Canada.
The hon. Member for Sevenoaks (Mr. Wolfson) spoke earlier today of the influence of debates in this House on public opinion in Canada. It has been said on several occasions that we are not addressing this House but are talking directly across the oceans as though we were somehow directly feeding into the Canadian system. Perhaps we occasionally take ourselves too seriously.
This evening I was given by Monsieur Gilles Loiselle, the Délégué-général du Quebec, a cutting from the Montreal Gazette of last Wednesday, which dealt in part with our two days of debate on the Canada Bill. The article is datelined Ottawa, and the author is a Mr. L. Ian MacDonald. Of course, Canada is populated by expatriate Scots, and I dare say that Mr. MacDonald has relations in Hamilton. There are precious few of my constituents who do not have relations in Canada.
Mr. MacDonald's long article is primarily concerned with his interest in whether a national holiday will be declared on the patriation of the Canadian Constitution, and the need for some break between Christmas and Easter to slake the thirst of those whose need for holidays is greater than their interest in the details of the Canada Bill. He says, however, that we are perhaps dealing too tardily with the process of patriating the Canadian Constitution. Indeed, he throws up the words of my hon. Friend the Member for Walsall, North (Mr. Winnick), who claimed that we were dealing with this in indecent haste. He said that that was not the view of those who watched these affairs in Canada. He said:
Well, the British are getting with it, at about the same pace as British industry, in their own way, with a certain number of legislative tea breaks.
Then, to display his knowledge of what is happening here, and interpreting the information that we are giving across these gigantic oceans, he said:
Though none of the 60 amendments offered in Westminster is likely to be accepted by the Thatcher government, more than two dozen amendments were ruled as receivable for debate".
In misinterpreting your ruling, Mr. Godman Irvine, Mr. MacDonald went on to say:
In accepting so many amendments for discussion, the Thatcher government is apparently trying to mollify those who accuse it of steamrollering parliamentary and constitutional convention, a principle that lies at the heart of British democracy".
So, if we are talking across the oceans, we are not getting over to the Canadian people the basic issue that the House selects the amendments for debate, not the Government.
Mr. MacDonald, in his search for a new holiday for Canada, has not finished with the delays that might occur. He said:
Nor have we seen the end of it. The Canada Bill is not slated to go to Britain's House of Lords before March 11, and it may have a stormy passage in the British Upper House, where there are many patron saints of lost causes".
I do not know whether their Lordships will like that accolade heaped upon them by Mr. L. Ian MacDonald. All that one can hope is that his analysis leads, if anything, to


the new national holiday that he seems to believe is such an important outcome of the consideration on the Canada Bill.
However, this evening's debate has been on serious issues and the motivation for the long and full speeches about the native peoples of Canada have been directed principally not to amending the Bill—although those who will press the amendments might try by accident to obtain amendment to the Bill, they know and they admitted in the debate that there is little likelihood of that happening—but it is an attempt to influence the climate of public opinion in Canada. The nature of the process of the Canada Bill gives them every right to express those worries, to place on record their concern and to express their views about the future protection that will obtain for the native people of Canada.
My right hon. Friend the Member for Norwich, North (Mr. Ennals) mentioned the ancient treaties that gave rights to the native people of Canada. He said, quoting one of them, that the protection was "for ever". Although one must say that the native peoples' concern about their status is genuine, right and proper, and we hope that the Canadian people and Parliament will take their views very much into account, the idea that any treaty, Act of Parliament or constitutional settlement could stand on its own for ever is not tenable in a political world of pluralities and genuine democracies. However, in expressing those views and in referring to the treaty, we must have regard to the history of the country that will now be taking decisions on its own and bearing the burden of responsibility.
The hon. Member for Merioneth (Mr. Thomas), who, unfortunately, is not with us now, made an interesting speech about the need to protect minorities even if those minorities are in another country. He drew many parallels between the protection of minority rights in Canada and in the United Kingdom. He mentioned not only the ethnic minorities but the cultural minorities in the celtic fringes of the United Kingdom. I find some inconsistency in the argument put forward by a Welsh Nationalist Member of Parliament which, expressed at some length, concerns the internal affairs of the Canadian people, when the very raison d' etre of the Welsh Nationalists in Parliament is to get the English, the Scots and the Irish off the back of the Welsh people and to stop them from interfering in the internal affairs of Wales. That is perhaps to expect some consistency in the nationalist argument that has never been displayed eloquently in the past.
My right hon. and hon. Friends, on the Opposition Front Bench at least, do not wish to have a vote on the amendment that we tabled primarily to probe and to find answers to the expressions of interest and concern that we have put forward in the debates. Therefore, we propose to seek to withdraw amendment No. 27. Our intention was simply to place on record the concerns that have been expressed to us by people in Canada and the fact that we demand and expect the right to express those views and to put them on the record. Perhaps the Committee has moved at its own pace, but in the style with which we normally deal with such affairs and the seriousness with which we take them, we hope that attention will be paid in the sovereign Parliament of Canada so that the interests will be taken into account and that the people of Canada will recognise the spirit in which the advice and comments are made to them.

Mr. Luce: The hon. Member for Hamilton (Mr. Robertson) referred to the fact that there has been considerable discussion in Canada about the possibility of a national holiday. Perhaps that is something we should contemplate after we have considered the Bill.
The hon. Member for Hackney, Central (Mr. Davis) wondered, in view of the consistency of my speeches, whether it was worth my while coming into the Chamber. At one point I was tempted to accept his implied offer, but I am sorry to have to disappoint him. I feel that in some way I ought to respond to the debate.
The right hon. Member for Down, South (Mr. Powell) has continuously probed about part V of schedule B relating to amendments to the constitution. I did not hear his precise words, but I think he felt that it was like waiting for Godot and that nothing ever happened. I want to ensure that I give the right hon. Gentleman an adequate answer. Therefore, tomorrow morning, I propose to give him a letter setting out my response to the point that he has raised. I hope that the right hon. Gentleman will find that satisfactory.

Mr. Clinton Davis: That may be satisfactory to the right hon. Gentleman and the Minister, but the Committee will not be seized of that information. Having regard to the importance of the right hon. Gentleman's question. would it not be better for the matter to be reported in the Official Report through a device that I am sure the right hon. Gentleman could use? After all, this is not a private matter between the Minister and the right hon. Gentleman.

Mr. Luce: I am anxious to give an adequate reply. I therefore want to take a reasonable amount of time over it. I shall certainly consider what the hon. Gentleman has said, but my response will be to a specific question from the right hon. Member for Down, South.

Mr. J. Enoch Powell: I am obliged to the Minister for his courtesy. It may perhaps be for the convenience of the Committee if I table immediately a written question to the hon. Gentleman so that in due course his reply can appear in the record.

Mr. Luce: I would be happy if the right hon. Gentleman proceeded on that basis.
As the hon. Member for Hamilton said, the debate has focused extensively on the Indians. Although there has been considerable repetition, no one would criticise that in any way whatever because we are all aware of the fact that there is much anxiety about Indian interests.
The Committee has every right to debate these issues. I hope that my hon. Friend the Member for Essex, South-East (Sir B. Braine) will accept that, because at one point in his speech the implication was that Ministers were seeking to deny hon. Members the right to do so. That is quite wrong. That is not what we are seeking to do. The speeches from hon. Members on both sides have once again been powerful and impressive on this issue.
Of course, I have to bore the Committee by repeating the position of Her Majesty's Government with regard to the Indians, although I should also like to respond to a point that has been made by for example, my hon. Friend the Member for Sevenoaks (Mr. Wolfson) about the question of the Canadian Government raising issues in this debate. As the Committee is aware, and as I said in Committee last week when we were debating some aspects


of the Indian issue, we have made it absolutely clear that questions concerning the Indian and other indigenous people in Canada are, in our view, internal matters for Canada and not matters for which the British Government any longer have responsibility. It has consistently been the view of the Government that any treaty or other obligations concerning Indian interests that still subsist became the responsibility of the Government of Canada with the attainment of independence and, at the latest, with the Statute of Westminster 1931. It is to the Government of Canada that the Indians must look for the solution of their problems.
I also mentioned on that occasion that the Foreign Affairs Committee—and my right hon. Friend, the Lord Privy Seal on several occasions bore out this view—

Mr. Clinton Davis: Could the Minister say why, in his view—or perhaps in the view of the Canadian Government—the Indians are given no status in the second constitutional conference that is to take place, whereas they are given a limited status in the first?

Mr. Luce: This is a matter for the Canadian Government. I do not think that it is right for me as a Minister in the British Governnment to comment on that, and this is consistent with the view I have already expressed. I will not go any further, because the Committee is well aware of the position of the British Government on these matters.
My hon. Friend the Member for Sevenoaks, backed up, I thought, by the right hon. Member for Orkney and Shetland (Mr. Grimond), and my hon. Friends the Members for Holland with Boston (Mr. Body) and Essex, South-East together with one or two others, exressed the hope that the attention of the Canadian Government would be drawn to the issues that have been discussed today and on earlier occasions, with particular reference to Indian matters. It is evident, as was borne out by the hon. Member for Sevenoaks, that the debate is being very closely followed in Canada and extremely widely reported in the Press. Members of the Committee will be aware that the Canadian Government have special representatives in London for the duration of the proceedings. I need hardly say this as I am sure almost every hon. Member is aware of it, but I think it is right to do so in response to the points that have been raised in the debate. The Canadian federal Government Minister for Justice, Mr. Chrétien, has, during the course of the proceedings, spent several days here in London and it will come as no surprise that I and my colleagues in Government have had a chance to talk to him and that he has taken note of the issues that have arisen here.
There can be no doubt, therefore, that the anxiety expressed by many of my hon. Friends that the Canadian Government would not be in a position to note the important speeches that have been made is groundless and that these speeches will not have gone unnoticed.

Mr. Body: Mine was a short intervention at a time when the Minister was out of the Chamber. In his absence I asked the Front Bench if the Canadian Government had given any information to the United Kingdom Government about the reasons for their decisions and if there had been any talks at all with the Indian peoples to allay their fears and suspicions. There seems to be a conflict of opinion

about what has been said and it would be helpful to some of us to know exactly what has been said by the Canadian Government.

Mr. Luce: I cannot answer for the Canadian Government, but I had hoped that my earlier remarks would be of some help in showing that they undoubtedly are noting the important speeches made here.
I owe it to my hon. Friend the Member for Essex, South-East to respond a little further on one point that he has raised before, that he raised again tonight, and that has weighed on my mind. My hon. Friend suggests that we are in danger of flouting, or in his view perhaps are actually flouting, the international civil and political rights covenant. No hon. Member can have anything but strong views on the importance of civil rights, human rights and our obligations under any international agreement.
I have given further thought to the matter, because I know that my hon Friend feels strongly about it. Having studied it further, I am satisfied that the United Kingdom would not be in breach of its obligation under the convenant if the Bill were enacted in its present form.
I go further. In the Government's opinion our responsibility is to enact the legislation as requested by the Canadian Parliament. The question of the compatibility of that legislation with Canadian obligations in international law, and its interpretation and application in conformity with Canada's international obligations, are matters for Canada.
Furthermore, the covenant incorporates provision for ensuring its implementation. In the case of Canada it is possible for individual allegations of breaches of particular articles of the covenant to be brought before the United Nations Commission on Human Rights. Therefore, if any aboriginal people believe that rights prescribed in the covenant are being violated, a remedy is open to them.
I took my hon. Friend's points seriously. I hope that he will find what I have said to be of at least some help.

Sir Bernard Braine: Not only I, but I am sure the whole Committee, will be grateful to my hon. Friend for what he has just said. I am not in the least surprised by his reaction and what he has just told us. What concerns us, however, is whether the Canadian Government are fully apprised of our anxiety on this score. We are being asked to enact legislation with this fear in our minds. Surely, there should be some sensitivity in Ottawa about the matter. Although my hon. Friend has said that representatives of the Canadian Government are here in London, and he has had talks with Mr. Chrétien and so on, may we have an assurance that this specific point, which reflects so much on the international personae of our two countries, will be discussed with the Canadian authorities before the Bill is passed?

Mr. Luce: I appreciate the strength of my hon. Friend's feelings, but I can go no further. I have already explained as fully as I can that I believe that the Canadian Government are taking careful note of the views expressed here.

Mr. English: Will the same remedy be open if Canada is in breach of the convention on the elimination of all forms of discrimination against women?

Mr. Luce: Such matters are the responsibility of the Canadian Government. I do not think that I should be drawn any further. I was trying to be as helpful as I could


be to my hon. Friend the Member for Essex, South-East. It is important that I should do so without going beyond what it is right for a British Minister to say.
With regard to all the amendments, which we have heard debated for a number of hours, any question of future arrangements to review the formula for amending the new constitution of Canada must be for the Canadian people themselves to decide. These amendments are based on that proposition. We believe that it is not for the British but Canadian Government and, in view of that opinion, it would be inappropriate for the Committee to support any of the amendments on the Order Paper.

Mr. Clinton Davis: Despite the predictably disappointing reply from the Minister at one time I thought that we would see a miracle. That miracle has had to be delayed for a written answer. Nevertheless, we look with hope for that and, in all the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being Ten o'clock, THE CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.

BUSINESS OF THE HOUSE

Ordered,
That, at this day's sitting, the Canada Bill may be proceeded with, though opposed, until any hour.—[Mr. Gummer.]

Again considered in Committee.

Amendment proposed: No. 41, in page 2, line 14, after 'Act', insert
'subject to the insertion in Schedule B after section 49, of a section (Amendments requiring assent of aboriginal peoples of Canada) as follows—;

"Amendments requiring assent of aboriginal peoples of Canada

49B. (1) Notwithstanding any provision in this Part, no amendments may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes

(a) to affect any aboriginal treaty rights or other rights or freedoms of the aboriginal peoples of Canada; or
(b) to repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to

(i) in the case of Indians, by representatives duly authorised to give such assent from time to time by, and who are appointed by, The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, by representatives duly authorised to give such assent from time to time by, and who are appointed by, a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose.

(2) In this section 'The First Nations Assembly of Canada' means the Chiefs of the Indian tribes, bands and Nations of Canada.".'.—[Mr. George.]

Question put, That the amendment be made:

The Committee divided: Ayes 28, Noes 140.

Division No. 83]
[10 pm


AYES


Bennett, Andrew(St'kp'tN)
Parry, Robert


Body, Richard
Powell, Rt Hon J.E. (S Down)


Braine, SirBernard
Powell, Raymond (Ogmore)


Buchan, Norman
Skinner, Dennis


Cox, T. (W'dsw'th, Toot'g)
Stewart, Rt Hon D. (W Isles)


Crowther, Stan
Stoddart, David


Cryer, Bob
Thomas, Dafydd (Merioneth)


Davidson, Arthur
Waller, Gary


Ennals, RtHon David
Wilson, Gordon (Dundee E)


Foster, Derek
Winterton, Nicholas


HomeRobertson, John
Wolfson, Mark


Lamond, James
Woodall, Alec


Lawrence, Ivan



Lewis, Ron (Carlisle)
Tellers for the Ayes:


McGuire, Michael(Ince)
Mr. Bruce George and


Marshall, DC(G'gowS'ton)
Mr. D. N. Campbell-Savours.




NOES


Alexander, Richard
Griffiths, Peter Portsm'thN)


Alton, David
Havers, RtHon Sir Michael


Ancram, Michael
Hawksley, Warren


Arnold, Tom
Hayhoe, Barney


Aspinwall, Jack
Heddle, John


Atkins, RtHon H.(S'thorne)
Hogg, HonDouglas(Gr'th'm)


Atkinson, David(B'm'th,E)
Hordern, Peter


Banks, Robert
Howells, Geraint


Beaumont-Dark, Anthony
Hunt, John(Ravensbourne)


Beith.A.J.
Jenkin, RtHon Patrick


Benyon, Thomas(A'don)
JohnsonSmith, Geoffrey


Benyon, W. (Buckingham)
Jopling, RtHonMichael


Berry, Hon Anthony
Kellett-Bowman, MrsElaine


Best, Keith
Kimball, SirMarcus


Biggs-Davison, SirJohn
Kitson, SirTimothy


Blackburn, John
Knight, MrsJill


Boscawen, Hon Robert
Lang, Ian


Bright, Graham
LeMarchant, Spencer


Brinton, Tim
Lloyd, Ian (Havant &amp; W'loo)


Brotherton, Michael
Lloyd, Peter (Fareham)


Brown, Michael (Brigg&amp;Sc'n)
Luce, Richard


Bruce-Gardyne, John
Lyell, Nicholas


Buck, Antony
MacKay, John (Argyll)


Budgen, Nick
MacKenzie, RtHonGregor


Butcher, John
McNamara, Kevin


Cadbury, Jocelyn
Major, John


Carl isle, John (LutonWest)
Marshall, Jim (Leicester S)


Carlisle, Kenneth (Lincoln)
Marten, RtHon Neil


Chapman, Sydney
Mates, Michael


Clark, Hon A. (Plym'th, S'n)
Mather, Carol


Clarke, Kenneth (Rushcliffe)
Mawhinney, DrBrian


Cockeram, Eric
Maxwell-Hyslop, Robin


Cope, John
Mayhew, Patrick


Costain, SirAlbert
Meyer, SirAnthony


Crouch, David
Mills, Iain(Meriden)


Dean, Paul (North Somerset)
Miscampbell, Norman


Dorrell, Stephen
Mitchell, R. C. (Soton Itchen)


Douglas-Hamilton, LordJ.
Moate, Roger


Dover, Denshore
Morrison, Hon C. (Devizes)


Dunn, Robert (Dartford)
Murphy, Christopher


Elliott, SirWilliam
Myles, David


Emery, Sir Peter
Neale, Gerrard


English, Michael
Needham, Richard


Faith, MrsSheila
Nelson, Anthony


Fenner, Mrs Peggy
Neubert, Michael


Finsberg, Geoffrey
Newton, Tony


Fookes, Miss Janet
Normanton, Tom


Forman, Nigel
Onslow, Cranley


Fox, Marcus
Osborn, John


Garel-Jones, Tristan
Page, Richard (SW Herts)


Goodhart, SirPhilip
Patten, Christopher(Bath)


Goodhew, SirVictor
Penhaligon, David


Goodlad, Alastair
Percival, Sirlan


Gow, Ian
Pym, RtHon Francis


Greenway, Harry
RhysWilliams, SirBrandon






Ridley, HonNicholas
Spicer, Jim (West Dorset)


Roberts, Wyn (Conway)
Stanbrook, Ivor


Roper, John
Stanley ,John


Rossi, Hugh
Steel, Rt Hon David


Sainsbury, HonTimothy
Steen, Anthony


Shaw, Giles (Pudsey)
Stevens, Martin


Shepherd, Colin(Hereford)
Stradling, Thomas.J.


Smith, Cyril(Rochdale)
Taylor, Teddy (S'end E)


Speed, Keith
Temple-Morris, Peter


Speller, Tony
Thomas, Rt Hon Peter

Question accordingly negatived.

Thompson, Donald



Thorne, Neil(IlfordSouth)
Tellers for the Noes:


Thornton, Malcolm
Mr. Selwyn Gummer and


Trotter, Neville
Mr. David Hunt.


Viggers, Peter



Ward, John



Warren, Kenneth



Watson, John



Wheeler, John



Wickenden, Keith

The First Deputy Chairman (Mr. Bryant Godman Irvine): I remind the Committee that we are taking schedule B with clause 1, so if any hon. Member wishes to raise points on schedule B other than those already raised on the amendments this is the time to do so.

Question proposed, That the clause stand part of the Bill.

Mr. J. Enoch Powell: Despite the breadth and latitude of the ruling of the Chairmen of Ways and Means that you, Mr. Godman Irvine, have just repeated, it would be tedious if those of us who have taken a detailed interest in the Bill were to use this opportunity to deal with the individual matters in schedule B which were the subject of amendments which have not been selected. Therefore, I wish to address myself to the general question of what sort of document it is that we are enacting by enacting schedule B through adding clause 1 to the Bill.
Part of the schedule is loosely described as a bill of rights and defines itself and entitles itself as a charter of rights. But is this a charter or a bill of rights in the sense that it constitutes a basic constitution that can be interpreted by the courts, and, as a result, the rulings of the courts become law, binding upon citizens of the country concerned and incapable of being amended by its legislature? In other words, is it a document analogous to the constitution of the United States or, to take a different analogy, is it analogous to the European Convention on Human Rights, to which this country has undertaken compliance, compliance with that convention as adjudged, defined and applied by the European Court of Human Rights.
I wish to put three tests in the light of the context of the schedule, in accordance with which I believe that that question can be answered. The first is the generality of a great many of the provisions of the schedule. I shall take only two instances. The first, section 1 of the schedule, where the charter of rights and freedoms guarantees the rights and freedoms set out in it and then follow the words:
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
I take as my second example one that I think may be of particular concern to the hon. Member for Workington (Mr. Campbell-Savours), who, I think, will have section 7 in mind, which says:
Everyone has the right to life.
If these are prescriptions interpretable by courts and capable, through interpretation by courts, of being made the specific law of the land, then the courts, in effect, become the supreme legislature of the country concerned. The largest of public questions, the most specific matters touching criminality and personal relations and behaviour, cease to be within the competence of the elected representatives of the people and are laid down in accordance not necessarily even with precedent, for there can be no precedent in interpretating such wide and cloudy generalisations. These are interpreted perhaps in accordance with some principles of law derived, I know not whence. Perhaps in the case of the European Court of Human Rights they are derived from Roman law, but they are not derived from the common law of Britain.
So, we ask when we look at a great many of the provisions in this charter" does this mean—for if it is a charter it would mean—that the Canadians are constituting

their supreme court as, in effect, their legislature on all these matters which in this country are settled finally—subject to external obligations, which we are now starting to explore and which are undertaken by the Government—by Parliament and, specifically, by this House? It should be understood that, in the sense of being an entrenched and justiciable document, a charter of liberties or a bill of rights is incompatible with parliamentary sovereignty.
It is also incompatible with the rule of law as we understand it, which requires that the law shall be so defined and of such a character that the citizen may reasonably inform himself in advance of what will or will not be adjudged to be lawful. Certainly, no one reading the generalities of the early part of the schedule could possibly decide how a court would rule upon so many measures which in legislation we are careful by procedure to define as accurately and precisely, and often intelligibly, as we
The second characteristic to which I draw attention is that such a document as this usurps—if it is an entrenched justiciable constitution—the parliamentary right of taxation. The courts in effect become not merely the legislature, the lawmaking authority, but the taxing and financial authority of the State. I invite the Committee to examine section 23(3) which states
the right of citizens of Canada … to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction".
There is an immense range of such questions which the House decides week by week as it goes about its business of granting Supply and providing Ways and Means.
A question of quantity—of what it is that warrants the given expenditure of public funds—is, in our view, a matter which ultimately can be decided only by this House, which controls taxation and the expenditure of public money. But, if a court is to be the last instance of decision on what number of citizens
is sufficient to warrant the provision to them out of public funds of minority language instruction,
the spending and taxing power, pro tanto, is in effect passed to a court. That power cannot logically be restricted to the particular subject to which the judgment of the court relates, for there could be a whole series of judicial decisions carrying expenditure and, consequently, taxation implications.
We know well enough that every decision to spend on A is potentially a decision not to spend on B. If an authority allows one part of public expenditure, and therefore, of taxation, to be pre-empted by some other authority, then in effect all the decisions of policy which involve public funds and public expenditure are transferred away from the elected assembly, representative of the people, to another authority of a different kind altogether.
The third aspect has been discussed already this evening, and I shall not enter at length into it again. This Parliament is sovereign, subject to the qualifications principally introduced in 1972. However, for theoretical purposes let us treat Parliament as what most of us thought it was when we entered it—a sovereign Parliament. If we so wish—although we normally choose not to—we can reverse the individual judgments of any court in the land. If we do not agree with the construction of the law or statute in any court—including the highest in the land and


the one upstairs—we alter the law to conform with our view of public policy and, ultimately, with our judgment of the general will of the people of this country.
Therefore, the right to amend and correct interpretations of the law—which cannot be separated from the right to make law that is inherent in a parliamentary body—is incompatible with the entrenchment of a constitution, or with a constitution of such a character that its judicial interpretation becomes part of the binding law of the State. Therefore, the document before us is one of two things: either it is a Bill of rights in the proper sense of the term and, therefore, incompatible with parliamentary sovereignty as we know it, or it is a mere piece of legislation, like any other—such as a road traffic Act, the European Communities Act 1972, or any other major or trivial legislation—that the House has the undoubted power to amend according to its judgment and with the necessary co-operation from elsewhere. Which type of document is it? Which type of document did the Canadians think that it was when they sent it to us?
As I pointed out earlier with the assistance of the Minister, we have been told. In the preamble to the message by which the Bill was transmitted from the Canadian Parliament to Her Majesty, we are told:
it is in accord with the status of Canada as an independent state that Canadians"—
I do not think that that means Canadian judges—
be able to amend their Constitution in Canada in all respects".
If we had a constitution, or were talking loosely and described our whole body of statute law as our constitution, we would say that. We would say that the British can amend their constitution in the United Kingdom in all respects; and who would say us nay? I believe that that is what the Canadians meant. I cannot believe that the Canadian inheritrix of the sovereignty of this House is content with anything less in Canada than we possess in the United Kingdom. If that is what is meant, it is delusive and untrue to represent the document as if it were an entrenched constitution, a guarantee of rights, a Bill of Rights or anything of that type. Any section of the Canadian public that have been led to that conclusion—no doubt unwittingly by the Government and by hon. Members who have spoken, but by others elsewhere wittingly—have been misled.
In adding schedule B with clause 1 to the Bill, it is our duty to make plain not only to ourselves but to those in Canada the nature—in our view and even more, in theirs, as they have expressed it—of schedule B and consequently of the so-described Canadian constitution. It is, like our law, subject to amendment; like our taxes, subject to the will, and like our interpretation of the law, it is subject to the correction of their Parliament in all respects and without restriction.

Sir John Biggs-Davison: Your immediate predecessor in the Chair, Mr. Armstrong, very kindly informed the Committee that anything would go in this debate provided that it was within the compass of Schedule B. Therefore, I wish to refer to clause 58 of the Bill in the spirit of my new clause 3 which the Chair, in its wisdom, did not select.
I invite those who manage the progress of parliamentary business to ensure that the coming into force of this

measure, which is the subject of clause 58, shall occur after and not before the Quebec Court of Appeal has ruled on the provincial Government's test case which is to be heard this very month.
I am not concerned—and I do not think that the Committee should be concerned—with the nature of Quebec's objections to the Bill. Quebec objects to arrangements for fiscal compensation for opting out of the constitutional amendments, it objects to the provision concerning minority language educational rights, and it also objects to mobility rights. We are not concerned with all that, but I suggest that we ought to be concerned with Quebec's claim to the right of veto over constitutional changes to which the province does not agree.
The Government of Quebec favoured me with a copy of the letter which the First Minister wrote to my right hon. Friend the Member for Cambridgeshire (Mr. Pym), who, like his opposite number in Ottawa, is President of the Privy Council. The letter complains of
failure to respect Quebec's traditional veto with regard to fundamental constitutional changes",
and it goes on to assert that
it would be highly improper for the United Kingdom Parliament to act in the matter until the conclusion of the legal proceedings now in progress. Such action would be contrary to constitutional tradition.
There is no suggestion that this is a question of legality; it is a question of constitutional tradition. But the Supreme Court of Canada laid emphasis upon the importance of constitutional convention as well as of constitutional law, and the Supreme Court, just like the Judicial Committee of the Privy Council in the past—to which reference has been made from the Opposition Front Bench—was unequivocal in stating that there are no exceptions. It said "There are no exceptions", in 115 years of the constitution of Canada, that have allowed the legislative power of provinces to be affected without their consent.
On Second Reading my right hon. Friend the Lord Privy Seal referred to what might be called "the British Columbia exception" of 1907, which I submit turned out not to be an exception at all. I shall not repeat what I said on Second Reading.
Much praise has been lavished—and rightly so—on the Select Committee on Foreign Affairs, headed by my hon. Friend the Member for Stroud (Sir A. Kershaw). In its first report, the Select Committee said, in words that were quoted by the Lord Privy Seal on Second Reading:
The United Kingdom Parliament is bound to exercise its best judgment in deciding whether the request in all the circumstances conveys the clearly expressed wishes of Canada as a federally structured whole.
The question that worries me is whether the federally structured whole, which is Canada, founded on a compact between Upper and Lower Canada, has made clear its expressed wishes on the matter. The Select Committee's report states that Her Majesty's Government and Parliament here should comply with the joint address from Canada only where it is clear that the request is such that
it conveys the clearly expressed wishes of Canada as a whole, bearing in mind the federal character of the Canadian constitutional system".
In Quebec there are, of course, different opinions. Quebec also contains a quarter of the population of Canada. However, in the past—and this is the constitutional tradition to which Monsieur René Levesque referred in his letter to my right hon. Friend the Leader of the House—proposed amending formulae always included


the Quebec veto. The original proposal by the Federal Government included it, and the veto is to be enshrined for the future in the patriated constitution.
A brief quotation from that great Canadian Tory, Sir John A. Macdonald, that Disraeliesque character, may be apposite for my right hon. and hon Friends. He said:
It has been understood that no proposal which would threaten the individuality and personality of Lower Canada would ever be acceptable to the people of that part of Canada".
Quebec has had a veto. Quebec has never forgone a veto, despite what has been said in some quarters. There is nothing new about Quebec's position. For example, in the Dominion Provincial Conference in 1927, the then Minister of Justice, Mr. Ernest Lapointe, drew a distinction between what he called "old" amendments, which would require no more than majority consent of the Provinces, and
vital and fundamental amendments involving such questions as provincial rights, the rights of minorities, or rights generally affecting race, language and creed".
That, of course, is what this Bill does.
I do not presume to pronounce on these matters—nor do I think that any right hon. or hon. Member of this Committee should do so. However, I anxious that we do nothing here to threaten confederation. Early on, we paid much attention to the judgment of the Supreme Court. We should not now place ourselves in danger—or place our Canadian subjects in danger—of being at variance with the courts. Therefore, I ask, as is quite possible within the conduct of business, that there should be a moderate stay in the enactment of this great measure.

Mr. Campbell-Savours: The right hon. Member for Down, South (Mr. Powell) made a very interesting contribution to our debate. I apologise for the fact that I am not in good voice, which I have lost over the past few days. The right hon. Member set out to prove that we should be concerned about the possible judicial interpretations that may be made arising from the patriation of this Bill of Rights, and that we may well be removing from the Canadian House of Commons the right to legislate, to the extent that the Canadian Supreme Court may seek to overturn whatever decisions it may wish to take because whatever it does has to comply with the terms, sections and requirements of the charter that we are being asked to patriate.
Before I come to the matter that I want to raise, I wish to point out that I have no desire to prevent this Bill of Rights or charter from being constitutionally patriated. I join all right hon. and hon. Members who seek that there should be patriation, but I have one considerable reservation—what will happen when judicial interpretation affects certain sections of the Bill. My intention in raising the point about the unborn in Canada is not that I wish in any way to interfere in their right to legislate on abortion. On the contrary, I wish to do the opposite. I wish to provide them with the right to choose for themselves, I believe that the Bill, including schedule B, will no longer allow them that right.
People in Canada should have the right to choose for themselves whether they want more liberal legislation on abortion or more restrictive legislation. In my view, because of the way in which the Bill of Rights and charter are construed at this stage, they will not have the right to take those decisions.
Last year, the hon. Member for Bute and North Ayrshire (Mr. Corrie) introduced a Bill on abortion which

in the case of the British Parliament was designed further to restrict. He was able to do that in the state of the law then prevailing. My case is that under the Bill as we are required to patriate it, that will not be the case, and that a Member of the Canadian Parliament will not have the right to go to that Chamber to seek the approval of that House for any Bill without the courts intervening with the objective of overturning whatever law is provided for by the Canadian Parliament.

Mr. J. Enoch Powell: The hon. Gentleman has several times referred to our patriating the constitution in schedule B. I make more than a pedantic point when I say that we cannot be patriating that because it does not exist to be patriated. We are making it de novo, and we are choosing to make it so. It is a separate question—I am not interfering with the hon. Gentleman's main argument—whether or not we patriate that which we can patriate.

Mr. Campbell-Savours: The right hon. Gentleman clarified what I should have said. Perhaps I slightly misled the Committee, although I am sure the right hon. Gentleman will again put me right if I veer slightly from the truth.
Let me refer directly to the section that causes me some concern. Section 52 says that under the Charter of Rights and Freedoms
the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is … of no force or effect.
That merely reinforces the point that I am making, which is that the Charter itself will provide a framework on which Canadian legislation will be based. As I understand it, it will be Canadian legislation as approved by the courts, because they will become the testing ground for any legislation that is the subject of appeal.
I turn to the position of the unborn in Canada. Section 7 of the Charter says:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The section includes the crucial words, words of international renown: "everyone", "person" and "individual". Those words are of particular concern to rue, because in a number of cases heard not only in Canada but in America and in the United Kingdom they have proved useless for the protection of the unborn.
10.45 pm
From a substantial amount of case law, I wish to refer the Committee to some particular cases. In the case of both Dehler v Ottawa Civic Hospital in 1980 and Edwards v Attorney-General of Canada in 1930 the word "person" was held to exclude the foetus. In the Canadian case of Morgentaler v Regina in 1975 the word "individual" was held to exclude the foetus. In the case of Paton v British Pregnancy Advisory Service, "person" was held to exclude the foetus, and in a Canadian case to which I shall return later, Roe v Wade, the foetus was also held not to come within the definition of "person".
I am not in a position to say how eminent the Canadian Library may be, but I am told that it is a very responsible source of information, as I am sure that it is if it is as good as our Library. The Canadian Library maintains that the words "everyone", "person" and "individual" are all interchangeable. I am also told that in Committee in the


Canadian Parliament when an amendment was being considered the Canadian Government admitted that the words were all interchangeable and of equal value.
I suggest that section 7 is a danger in that it rules out any protection for the foetus, and that the courts may rule on the basis of the section. However, in section 33 there is an overriding exception, which covers section 2 and sections 7 to 15. At first glimpse that would appear to rule out the section that I have just dealt with and therefore perhaps remove the danger that I have spent the past five minutes referring to. But that is not so, because the moment one rules out that section another section—section28—arises. It says:
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons".
Again, that wicked word "person" returns. We must ask ourselves why it arises again in the Bill. Let me go into the origins of that. It was thought up by the women's movement in Canada. I am told that there was much argument about its inclusion. The Canadian Advisory Council on the Status of Women, in November 1980, stated:
The recommendations to include the word 'person' was to prevent the foetus from having protection in the Charter.
It is clear that that section has also been interfered with in such a way as to provide good work and income for the courts and the Supreme Court of Canada and, no doubt, it will give them the opportunity, when tested against the background of the charter, to change the law in favour of liberal abortion, which is not the open or explicit intention of the Canadian Parliament. I am convinced that that would not be the intention of this Parliament, if this matter were known to the whole House.
As I understand it, criminal code 251 is the current law in Canada governing administration of abortion. The charter will give courts the opportunity to dismantle criminal code 251—I dissent from the views expressed by the right hon. Member for Down, South when referring to the American constitution, and I am sure that he will intervene and tell me where I am mistaken—in the sense that Canadians seem to be talking about the Bill of Rights in the same way as the Americans appear to refer to the American constitution.
The precedent for my remarks is the case I referred to earlier and which ruled out, in the definition of "person", the word "foetus". That was the case of Roe v. Wade, heard in Texas, in which the court, in effect, ruled in favour of an appellant challenging the existing restrictive American law on abortion in about 1972 or 1973. The appellant tested that law in the courts, which ruled that the law, as it existed in Texas, offended amendments 9 and 14 of the American constitution. Therefore, no sooner had the decision had been taken to reward the appellant with a favourable response in the Texas courts, than all the law on restricting forms of abortion in America was wiped out overnight. That is my precedent and I simply ask the House whether it could happen again.
There is an obligation on the House—as my amendments sought to show—to decide on this matter. Of course, that decision cannot now be taken because these matters have passed. All I am trying to stop is a precedent, which occurred in the United States of America, happening within Canada. Hon. Members would wish to see that brought about.
The same Canadians reject my analysis. I have heard the word "neutral" being used to refer to the Bill on many occasions over the past week. However, is it neutral? Many people in Canada believe that it is not neutral; a firm of banisters—Stephen's, French and McKeown—and many other organisations and societies in Canada maintain that this Bill lacks neutrality. The women's movement in Canada believes that it is not neutral. It may seek to press it as neutral at this stage, but it maintains that it is not. The. Catholic Church maintained that it is not neutral and, if the Dehler v. Ottawa civic hospital judgment is right, it certainly is not neutral. I quote Mr. Justice Robins in his summing up of that case, who said:
Accepting as fact the conclusion the plaintiff seeks to establish by testimony at trial, that is, that a foetus is a human being from conception, the legal result obtained remains the same. The foetus is not recognised in law as a person in the full legal sense.
Therefore, it seems that some eminent people in Canada are willing to prejudge what may happen if those matters are tested in the courts of Canada. They believe not that the Bill is neutral but that it will lead to abortion on demand in Canada, which was never the intention of this Parliament. We are doing that from here. It is we who are responsible for what is returned to Canada.
In some way or another we should seek to amend the Bill. There are two ways of doing so. The right hon. Member for Down, South dwelt at great length on one of them. We know that there are some major obstacles to amendment in Canada. One is the requirement that the federal Government should support amendment and that seven out of the 10 provinces representing 50 per cent. of the population should approve it. That is a severe hurdle, particularly in the light of the considerable frictions that have existed traditionally between the provinces and the federal Government.
Alternatively, we can amend the Bill. However, repeatedly over the last week I have been informed that we are not here to amend. We can table amendments and they will be heard, but the Government do not wish to accept amendments. We are being used—it cannot be proved either way until it is tested in the courts in Canada—perhaps to change the law in Canada in our name without being provided with the right to amend in any way what could be the source of whatever changes take place in Canadian law.
Mr. Trudeau tells us that it is unnecessary for us to express that view. I shall make clear what Mr. Trudeau said about the amendment when it was dealt with in the courts. When the amendment to which I referred was discussed in the House of Commons in Canada, he said:
If the essence of the question is whether this House"—
that is the Canadian Parliament—
continues to have the right to deal with abortion, Madam Speaker, the answer is yes. It will be the Parliament of Canada which will still be writing the Criminal Code and the members of this House will have the responsibility, and I wish them well, in dealing with the problem of abortion.
Mr. Trudeau was seeking to reassure the Canadian House of Commons that it would retain the right to legislate.
In 1979, when we were dealing with the Transport Bill, undertakings were given with every confidence by Ministers at the Dispatch Box as to the effects of legislation on transport undertakings. However, as we have subsequently found out in the last few months, the courts overruled the will of the politicians. The view of Mr. Trudeau is but the will of a politician. I maintain that that desire and the belief that the Canadian Parliament will


retain the right to legislate is not necessarily to be accepted not only because of the precedents here but because of the precedent in Canada.
When criminal code 251 was brought before the Canadian House of Commons in 1969, the then Justice Minister, Turner, gave a number of clear assurances to the House. He said that there would be no increase in abortion, no eugenic abortion and no Medicare cover for abortion.
I am not interested in whether it is right or wrong to have more permissive or more restrictive abortion legislation. I am saying that what the Justice Minister made clear to the Canadian House of Commons at that time did not prevail. In every one of those areas there were changes, proving that the assurances given by Mr. Trudeau and Mr. Turner were not valid.
Therefore, the assurances given by Mr. Trudeau to the Canadian House of Commons should be no more valid on this issue than they were then or in the case of our own Minister in the Standing Committee debates on the Transport Bill in 1969.
11 pm
The issue that we have to decide is very simple, although we do not have the right to do so, because there are no amendments. It is whether this Committee accepts that the Canadian Parliament and not the Canadian courts has the exclusive right to decide about abortion. In my view, as schedule B stands, that will not be so and it will be the Canadian courts which decide.
That view has been expressed not only by me as a Labour Member of this House and by three Labour or equivalent Members of the Canadian House; it was expressed and indeed almost mirrored in speeches made by Conservative Members of the Canadian House of Commons. Every Conservative Member of the Canadian House voted in favour of the amendment that I tabled but which was not selected. So there is agreement in Canada and great anxiety about what has happened. Yet we are not in a position to discuss it. Indeed, members of Mr. Trudeau's own party defected on this issue when it was debated in the Canadian Parliament.
Whatever we do, we must ensure that generations of Canadians in the future have the right to decide for themselves whether they want more permissive or more restrictive abortion legislation. It is my submission that as the charter stands today that will not be their right, because the Canadian courts will effectively have removed it.

Mr. John G. Blackburn: I have attended most of the debate and I do not pretend, nor would I deceive the Committee by suggesting, that I am an authority on constitutional law. But I exercise the sovereign right of every member of this Committee to express an opinion, particularly at this historic moment, as it has been described, for Canada. It may indeed be a sacred moment. By the grace of God, let us hope that it is not a tragic moment for Canada.
The proceedings of the Committee got off to a very fine start with a speech that few Members of the House will ever forget—that of the right hon. Member for Down, South (Mr. Powell). The right hon. Gentleman outlined to us then and said again today in very clear tones that two issues are involved. Will it be the right of an elected House of Commons of Canada to create the legislation, or will it be a matter that is left to the judiciary?
During the course of the Committee, time and again hon. Members have come squarely to the issue of why we

are debating the Bill. We are doing so because we have to and we have been invited by the Canadian Government to pass the legislation. I shall not take much time but there are times in one's public and political life when one is called upon to stand up and be counted.
Tonight, and with this Bill, I am prepared to stand up and be counted on one issue. That matter relates to the legislation contained in the Bill under sections 52 and 7. I think that you would rule me out of order, Mr. Armstrong, if I were to develop an argument for or against abortion. That is not my intention. But, in passing this legislation, we have a solemn responsibility as a legislative assembly to make sure that it leaves this place as we would wish it to be. Section 52 says:
The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
We cannot accept section 52 without spending just a moment examining section 7. When we do so, we know, in the quietness of our hearts, that the eventual decision of this legislation will rest, not with the House of Commons of Canada but with the judiciary.
I just place it on record that, in my judgment, humble though it is, but saturated with sincerity, I would prefer the legislation of the Canadian people to rest with the Canadian House of Commons rather than with the judiciary. I direct two questions to the Front Bench, on which I would value its guidance. Is it true that, with the knowledge that my right hon. Friend has, the passage of the Bill could open the way for the facility of abortion without question within the terms of this constitution? If that is so, I want him to know that there are hon. Members who would find that proposition morally offensive.

The Lord Privy Seal (Mr. Humphrey Atkins): I do not think that I need detain the Committee for long at this hour of night on the clause stand part debate, with which we can discuss any remaining matters arising out of schedule B. We have had two full days of discussion in Committee about most of these matters but, nevertheless, a number of hon. Members have raised points with which I should deal.
Although my hon. Friend the Member for Epping Forest (Sir J. Biggs-Davison) was not prepared to speak on this amendment, he earlier spoke about Quebec and urged that there should be at least a delay in the passage of the Bill because Quebec still does not agree to its passage. That issue was covered on Second Reading. I referred on Second Reading to the disagreement between Quebec, the other nine provinces and the Federal Parliament and said that the Government do not believe
that the existence of this disagreement provides grounds for declining to act, as we have always acted, upon the request of the Canadian Parliament."—[Official Report, 17 February 1982; Vol. 18, c. 295.]
At the end of the debate the House of Commons agreed with that proposition. I find no reason to change my judgment now. As the House of Commons agreed with the proposition, I hope that the Committee will continue to agree that in spite of the disagreement, which we all regret, there is no cause for delaying the passage of the Bill, which was what we decided on 17 February.

Sir John Biggs-Davison: My right hon. Friend says that we should not decline to do what we are asked. I am not suggesting that we should. That is different from the


timing of what we do, which is a distinct matter. The timing can be taken care of in a way that the managers of legislation know so well.

Mr. Atkins: My hon. Friend is right, but that matter was covered during the debate on Second Reading. The Government's view then—it remains the same—was that we should act. We thought that we had held our hand long enough and that we should go ahead with the Bill. I have no further advice to offer the Committee save that we should proceed.
The right hon. Member for Down, South (Mr. Powell), the hon. Member for Workington (Mr. Campbell-Savours) and my hon. Friend the Member for Dudley, West (Mr. Blackburn) asked a number of questions about schedule B, which will be the Constitution Act of Canada. The right hon. Gentleman raised three issues that worried him. He spoke about some parts of the Constitution Act having a generality that is too great, some parts usurping the parliamentary right of taxation and the powers of amendment. He said that it was different from our legislation. Yes, it is. It is very different from ours. It is a different country. It is Canada and not the United Kingdom. In criticising the way in which schedule B is presented to us, the right hon. Gentleman was not criticising Her Majesty's Government. He was not even criticising the Canadian Government. He was criticising the Canadian Parliament. It was the Canadian Parliament and not the Government—it was the Senate and the House of Commons of Canada—which asked us to enact the Bill in this form. It is no good the right hon. Gentleman shaking his head. He knows perfectly well that it was the elected representatives of Canada in Parliament assembled who invited Her Majesty and the House of Commons to pass legislation in this form.
Of course the right hon. Gentleman has doubts. The proposed legislation is different and we are dealing with a different country. If we were dealing with this country, his arguments about the unusual nature of what is proposed would be valid, but we are dealing with Canada and not the United Kingdom.
The same argument applies to the doubts that were expressed by my hon. Friend the Member for Dudley, West and the hon. Member for Workington. The hon. Member for Workington said at the beginning of his speech that he wanted to see patriation. We need not argue about the word at this stage. He continued to say what would happen. The issue that worried him most about the Bill of Rights was protection for the unborn child. He concluded by saying that in Canada things will happen as the Canadians want. Yes, I agree with him. What the Canadians want is in the Bill and they have said so. It may not be what he wants but, with respect, he does not represent a Canadian constituency. We are considering what the Canadians want.
My hon. Friend the Member for Dudley, West spoke about the right of the elected Parliament of Canada to create legislation. Yes, I agree with him. It has done so and that is what we have before us. The Government have not created it.

Mr. Campbell-Savours: rose—

Mr. Atkins: My hon. Friend referred to acting on the Canadian Government's request. I remind him that we are

not acting on a request of the Government of Canada. We are acting at the request of the Senate and the House of Commons of Canada, which are supported by nine of the 10 provinces.

Mr. Campbell-Savours: Will the right hon. Gentleman give way?

Mr. Atkins: No, I shall not. The hon. Gentleman can speak again if he wants to do so.
No hon. Member has advanced reasons why we should not approve clause 1. The Bill has been presented to us by the Senate and House of Commons of Canada. Everybody who has spoken agrees that they should decide the future of Canada. We should give them that power by approving the clause.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

TERMINATION OF POWER TO LEGISLATE FOR CANADA

Mr. J. Enoch Powell: I beg to move amendment No. 21, in page 2, line 17, leave out from "the" to "shall" and insert "commencement of this Act.".
I am not sure whether my amendment achieves my purpose, but Governments commonly are generous enough to answer a debate on the assumption that the amendment would achieve the intended result, and they direct their principal arguments to the case that the hon. Member moving the amendment intended. I am sure that that will be the case tonight.
My object is to distinguish the two separate things which the Committee is invited to do in the Bill, and to approve one of them and exclude the other. My purpose is to ensure that the bill patriates to Canada the right to make the constitutional and other law of Canada, removes the constitution from the statute book of this country and removes our hitherto retained right to legislate for Canada. That I describe in a single word—patriation.
The Bill also enacts a charter of rights and constitution for Canada which has not existed before. I believe that the Bill—and I am not alone in this in the Committee judging by the debates—should do the first of those two things and should not do the second.
From the early stages of our debates, I have asked two questions. I asked them again in the debate which has just been completed. When I heard the Lord Privy Seal's reply I was quite sure that he had still not understood what the questions were. I am sorry to say this in the Lord Privy Seal's absence, but I intend it to be complimentary. One is always in danger of being unfair to him by assuming that he understands things which he does not understand. Had he understood the questions, I should have accused him of deliberately avoiding answering them. But, listening to his speech, I was convinced that he had not grasped the basic questions, which not I alone but others want to ask about the Bill. I shall repeat them briefly.
First, if we did not pass any part of the Bill except that which patriates the constitution, or amends the Statute of Westminster so far as it reserves to this country power to legislate for Canada, could the Canadian Parliament itself pass the Bill? Secondly, can the Canadian Parliament amend this or any other Act either of this Parliament after


the Bill is passed or of the Canadian Parliament? Can the Canadian Parliament amend the Canadian constitution? Can it amend the contents of schedule B?
From the answers to those two questions follows the deduction as to what we should do with the Bill. If the Canadians could pass exactly this Bill themselves and amend it in any way that they like, there is no justification for our passing the Bill in this form, and the suspicion remains that we are being asked to do it only to convey a misunderstanding of the consequence of its being passed by us and handed over, instead of its being passed in the first place by the Canadian Parliament.
Although those questions were not appreciated by the Lord Privy Seal, despite efforts that have been made, the right hon. Gentleman has drawn our attention to the way in which the Canadian Parliament requested the Bill and in his explanation of the setting of that request has, in effect, answered them. He made it clear that the text was overwhelmingly passed by the federally elected Parliament of Canada and
with the support of the vast majority of all the members of all the parties in Canada."—[Official Report, 23 February 1982; Vol. 18, c. 825.]
We have been told over and over again that the contents of schedule B are what the Parliament of Canada wants, because it has textually passed it. That was the ground on which there was a debate on whether we could alter the wording at all.
If the Canadian Parliament is agreed upon the text of schedule B, and if henceforward the Canadian Parliament has the right—as I think is not denied—to legislate for Canada while we have no right to legislate for it, it follows that if we renounce our right to legislate for Canada and patriate that right to Canada the Canadians could give themselves this precise constitution and charter of rights if they so wished. What do they think they gain, and what is the advantage in having the Bill enacted by us and immediately taking it and saying that it is their Canadian constitution and nothing to do with the Parliament of the United Kingdom? We are bound to ask that question.
If the Canadians can do that, want to do that, claim the right to do that and are agreed upon it, why did they not do it? Why have they asked us to do it? Only one explanation occurs to me for such strange behaviour. Somehow the notion has been gained in some quarters in Canada that once the Bill has been passed by this Parliament it has an entrenchment, authority, validity and unamendability that it cannot have if it is passed by the Canadian Parliament.
I can see no other reason. Indeed, throughout our proceedings I have asked for reasons. Therefore, I am driven to the unpleasant conclusion that there has been a deception for the purpose of conveying a misleading impression—that the British Parliament can entrench the provisions, whereas the Canadian Parliament cannot. However, we know that that is not so. At the moment that it sent the Bill to us, the Canadian Parliament said that the purpose of the whole operation was that it was
in accord with the status of Canada that Canadians be able to amend their Constitution in Canada in all respects".
That means every jot and tittle of it. They can amend it. Therefore, they have told us that there is nothing that can be entrenched, because they will have the right to amend anything in the constitution.
I conclude that we have been misadvised in approaching in this way our undoubted duty to accede to

the wish of the Canadians to patriate their constitution and to have, henceforth, the exclusive right to legislate for Canada and no longer to have their fundamental constitution on our statute book. We should have done that in the simple straightforward manner of amending our law to give effect to that, but should not have joined to that the completely separate activity of passing a constitutional Act for Canada, that the Canadians can pass, are agreed upon and which, if they do not like it, they can amend. The purpose of my amendment is to separate the wheat from the chaff, or the sheep from the goats. Whether it does it or not, I do not know. It was the best that I could do with the Bill as it was drafted.

The Attorney-General (Sir Michael Havers): My right hon. Friend the Lord Privy Seal and others have on so many occasions reminded the Committee about the request and consent convention that it would be almost an insult to the right hon. Member for Down, South (Mr. Powell) for me to go through it again. The right hon. Gentleman referred to a little ewe lamb—or was it separating the goats from the sheep?
The amendment would deny the United Kingdom Parliament the right to exercise its residual power to legislate in Canada for what is probably the short period between the giving of Royal Assent to the Canada Bill and the coming into force of the Constitution Act in Canada, which, pursuant to clause 58 of schedule B, would take place on a day to be fixed by proclamation, issued either by the Queen or by the governor-general under the Great Seal of Canada. That may be of little import. If that is not done, we shall have an amendment that will be incompatible with the request and consent, and that will create a vacuum for the short period—whatever time it may be—between Royal Assent and the coming into force of the Constitution Act in Canada.
It would be undesirable to create such a vacuum during which time there would be no legislature legally competent to exercise the residual role at present exercisable by the United Kingdom Parliament in the period before the coming into operation of Canada's new constitution.
We are discussing a distinction without much difference, but it has some importance. Accordingly. I ask the Committee to reject the amendment.

Mr. J. Enoch Powell: Will the Attorney-General address himself—whatever might be the deficiencies of my attempt to find a drafting which would separate the two legislative acts—to that point?

The Attorney-General: I have said all that is necessary to deal with the amendment.

Mr. J. Enoch Powell: We are confronted with the resolute refusal of the Government to explain the extraordinary proposition that they have submitted to the Committee, at the request of Canada, that we should conjoin two separate things—the repudiation for the future of the right to legislate for Canada, with which we all agree, and the creation here, instead of there, of a new Canadian constitution. If the Government are unwilling to answer that question and to give any explanation of the apparent absurdity of such a procedure, we are obliged to deduce that the Canadian Government, by inducing the Canadian Parliament to make this request in this form, were engaged in deceiving one or more important interests


in Canada about the result of that constitution being placed first on the statute book of Britain and then being patriated to Canada.
Such a deduction would be not inconsistent with a great deal that we have heard in the debate of the gestation of this legislation. We are faced with the unwillingness of the Government to come clean about the real significance of the request that they have received from Canada and adopted in presenting it in the form of legislation. To that degree the Government are responsible for whatever misunderstanding or deception arises out of our passing the Bill in this form.
11.30 pm
We are approaching the end of these proceedings. It is an unhappy event that we should part from a legislative responsibility that we exercised for our one remaining Dominion under a cloud of incomprehension and misunderstanding and the suspicion that we are being used as a tool to produce political results in Canada that could not have been produced without that form of deception.

Amendment negatived.

Clause 2 ordered to stand part of the Bill.

Clause 3 and 4 ordered to stand part of the Bill.

Schedules A and B agreed to.

Preamble agreed to.

Bill reported, without amendment; to be read the Third time tomorrow.

London Airport (Fifth Terminal)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. David Hunt.]

Mr. Toby Jessel: I am grateful for the opportunity, at only a few hours' notice, to raise a matter of great concern to thousands of my constituents. I am also grateful to my hon. Friend the Under-Secretary of State for Trade—again at a few hours' notice—for the fact that he has changed his arrangements in order to reply to this debate about the number of terminals at Heathrow Airport.
Heathrow Airport already has three terminals. The airport is crowded. Every day there are 600 or 700 flights. Each year between 27 million and 28 million passengers pass through the airport. Now a fourth terminal is under construction. That terminal, when completed, will increase passenger capacity to about 40 million persons annually. Yet, before that fourth terminal has been completed and we have had time to see how it works in practice, some people are suggesting that there should be a fifth terminal as well. My object is to ask for a further clear assurance that it remains Government policy that a fifth terminal at Heathrow should not be built.
Over the years, as the Member of Parliament for Twickenham, I have had to strive to find ways to mitigate the impact of airport noise and congestion upon our quality of life without harming employment and prosperity in the area. It has not been easy. Successive Administrations, through the Department of Trade, have helped, and local pressure groups in my constituency and at other places near Heathrow have had much to say about the matter. Local Members of Parliament have also played a part and we have had most of the night-time jet take-offs stopped. We have pressed successfully over the years for the introduction of quieter engines in bigger aircraft, and we have given frequent attention to the angle of take-off and to flight paths.
For all that, however, aircraft noise remains a major nuisance and in spring and summer, when windows are open, it causes a great deal of human suffering; it ruins people's quiet enjoyment of houses and gardens; it interrupts the work of schools, churches, hospitals and offices; and it interferes with people's private lives, with their telephone conversations, and with their opportunity to listen to records or to watch television.
It must be said that some people do not mind aircraft noise very much, but to a large proportion around Heathrow, perhaps upwards of a million people, it is a considerable nuisance, to many people a major nuisance, and to some it causes actual suffering, even mental ill-health, as has been shown by Dr. Herridge, consultant psychiatrist to the West Middlesex Hospital. It is a major social evil in the communities affected by it.
It is not enough to say, as British Airways does—British Airways advocates the construction of a fifth terminal at Heathrow—even if it is true, which I doubt, that a fifth terminal would not increase noise. The present noise level is unacceptable, and what my constituents and others around Heathrow require is a substantial and permanent reduction in the volume of noise. I make no apology for dwelling on that aspect.
I asked for a form to be sent round my constituency. It contained the question "Do you want a fifth terminal at Heathrow? Yes or no?" Seven hundred and seventy nine


people took the trouble to post me their replies: 764 were against a fifth terminal and 15 were in favour. That ratio of 50:1 is all the more remarkable since all Members of Parliament know perfectly well that people write to one usually when they disagree with one's views. My constituents and I, however, are of like mind and, at a public meeting that I held on this subject in my constituency on Monday 8 February, 350 people attended and they were overwhelmingly against a fifth terminal at Heathrow. Some 40 of those present offered to give evidence at the public inquiry when it moves to the western side of London during the summer.

Dr. Alan Glyn: I agree with everything that my hon. Friend says, particularly on noise; he says it very well and it applies to my constituency. However, there is one point on which he perhaps has not touched. The Government said in answer to my question
The Government have stated their view on a number of occasions that a fifth terminal at Heathrow should not be provided."—[Official Report, 23 July 1981; Vol. 9, c. 195.]
That was in answer to a question I put down in this Parliament and I trust that the Government are not going to change their minds in the same Parliament.

Mr. Jessel: I am very grateful for the intervention of my hon. Friend, who is second to none in his determination to fight against aircraft noise. He has received that assurance in reply to his question, I and other hon. Members have also received assurances, but I am asking the Minister, when he comes to reply, to reiterate this tonight, because some interests, including British Airways, have been floating the idea that, after all, a fifth terminal should be provided. Therefore, we want to be clear, time and again, what Government policy on this matter actually is.
If I could go back to the public inquiry into the fourth terminal, at the end of it, in his report, the inspector, Mr. Ian Glidewell, QC, now Mr. Justice Glidewell, wrote:
 … it is in my view essential that, if they decide to permit Terminal Four, the Secretaries of State … 
he means the Secretaries of State for Trade and for the Environment
should at the same time reiterate that it is the Government's policy that there will be neither a fifth terminal nor any other major expansion at Heathrow … 
The former Labour Government in a White Paper in the latter part of the 1970s, expressed their opposition to a fifth terminal at Heathrow. As to the present Government, the present Secretary of State for Defence, when he was Trade Secretary two years ago, both in his statement in the House in December 1979 and in the airport policy debate in February 1980, stated a similar conclusion:
We have also given careful consideration to the possibility of constructing a fifth terminal at Heathrow, on the Perry Oaks site, in order to increase still further the capacity of that airport. However, we estimate that it would take at least 12 years to complete such a project, and it would impose added burdens on the surrounding area; These considerations have led us to the view that a fifth terminal should not be provided."—[Official Report, 17 December 1979; Vol. 976, c. 36.]
On 30 July last year, I formed part of a delegation of five hon. Members to see the present Secretary of State for Trade—who had, since the date of that quotation, taken office—and he wrote to me a few days later, on 4 August 1981, confirming the same position. He said in that letter:
In his letter to you of 13 November 1980, which was issued as a press notice by my Department, Norman Tebbit, the then Parliamentary Under-Secretary of State, for Trade, confirmed

that the Government's view remained unchanged; and in reply to a Parliamentary Question by Kenneth Carlisle on 13 May 1981, I reaffirmed the Government's view that a fifth terminal at Heathrow should not be provided. I do not think this can leave you in any doubt about the Government's views on the matter.
So the position is that both the Government and the Labour Opposition have officially expressed views against a fifth terminal. But that is not so of the Liberal Party, whose official spokesman in the airport debate in February 1980 reiterated that a fifth terminal at Heathrow should be considered.
Hon. Members for other constituencies than mine around Heathrow—my hon. Friend the Member for Esher (Mr. Mather), who is sitting on the Front Bench tonight, my hon. Friends the Members for Putney (Mr. Mellor), for Fulham (Mr. Stevens), for Richmond, Surrey (Sir A. Royle), for Windsor (Dr. Glyn), whom we have just heard, for Brentford and Isleworth (Mr. Hayhoe), for Ealing, North (Mr. Greenway) and other hon. Members have over the years expressed their concern at different times and their hostility on behalf of their constituents to the construction of a fifth terminal at Heathrow.
Apart from the problems of noise and congestion, we need to ask this question. If a fifth terminal is built on the Perry Oaks site—which, incidentally, would require some land for building in the Green Belt—what will happen over the re-siting of the sewage works at Perry Oaks? That sewage works is the property of the Thames water authority. Where will the Thames water authority re-locate that sewage works? It would have to be done if a large building were put there.
I understand that the Thames water authority has said that the site would have to be within 20 miles of Mogden sewage works in Isleworth, just to the north of my constituency. Several different places have been suggested as sites for such a sewage works, but it has not been fixed at any point. I hope that it never will be, because I hope that a fifth terminal will not be constructed thus causing the re-location of the sewage works.
My hon. Friends who have constituencies near Heathrow and I would all fight like tigers—we would fight implacably—to stop a sewage works from being put in our own constituencies. No one wants a sewage works as a neighbour. No one wants to look over his hedge or his fence and see a sewage works. If either British Airways or the Thames water authority imagine that they wound have an easy task in re-locating the Perry Oaks sewage works, they had better think again.
Although I have not given the Minister notice of this question, I shall be grateful if he will consider it sympathetically. When the public inquiry into both Stansted expansion and the idea of a fifth terminal—which were taken together for planning inquiry purposes—comes to the west side of London for hearings some time in the summer, I hope that the principal evidence of British Airways and other proponents of the fifth terminal will be heard again in full, so that my constituents have the opportunity to listen to and question that evidence. That was not possible during the first months of the inquiry, which took place at Quendon in Essex. The journey there was too difficult, and unless the evidence is given again on the west side of London, my constituents and others around Heathrow will be placed at a disadvantage.

The Under-Secretary of State for Trade (Mr. Iain Sproat): I congratulate my hon. Friend the Member for


Twickenham (Mr. Jessel) on his parliamentary nimble-footedness in seizing this opportunity, relinquished by my hon. Friend the Member for Plymouth, Sutton (Mr. Clark), who would no doubt have astonished the listening world with what he originally hoped to say, and for bringing before us this extremely important and topical subject of the fifth terminal at Heathrow and related matters.
In answer to my hon. Friend's final point, I am sure that Sir John King and his colleagues will take careful note of what he said. I undertake to see that my hon. Friend's speech is drawn to the attention of the chairman of British Airways so that he may, I hope, do what my hon. Friend suggests.
As my hon. Friend is well aware from previous Question Times and speeches, my ability to respond to the points that he has raised in this debate is severely constrained by the fact that the proposal for the expansion of Stansted airport, which the Government invited the British Airports Authority to bring forward, the alternatives put forward by objectors to that application, including proposals to develop airports at Maplin and Severnside, and the planning application submitted by the Uttlesford district council for the development of a fifth terminal at Heathrow are all matters which are currently before the inspector, Mr. Graham Eyre QC, who was appointed by my right hon. Friends the Secretaries of State for Trade and the Environment to hold inquiries into these planning applications. When the inspector has heard all the evidence given at the public inquiries, he will prepare a report and submit his conclusions and recommendations to my right hon. Friends, who will then take the necessary decisions.
In view of my Department's quasi-judicial role in this matter, it would be wholly wrong for me to offer any comments on the detailed merits of the proposals currently before the inspector, or by anything I say to fetter or influence his judgment or to pre-judge his conclusions. I therefore apologise in advance to my hon. Friend if in my reply I appear to be more guarded than I would like to be, and if I fail to respond to all the points that he has made.
However, I do not wish to be unhelpful to my hon. Friend. I am well aware that my hon. Friend's constituents have suffered more than most from aircraft noise at Heathrow. He has always been a valiant defender of his constituents' interests in this matter, and I can therefore well understand his interest in raising the matter of the proposed fifth terminal, which is a matter of legitimate concern to him and to hon. Members from neighbouring constituencies. It may, therefore, be helpful if I explain the position regarding the planning inquiry procedures now under way.
Hon. Members will recall that the 1978 airports policy White Paper had laid out a framework for airports policy in the South-East. It had concluded that limits should be placed on the growth of existing airports and that Heathrow's ultimate development should be limited to not more than four terminals. The White Paper did not, however, deal with the problem of how the longer-term demand should be met in the London airport's system. This problem was left to the present Administration to deal with.
In his statement of 17 December 1979, the then Secretary of State for Trade set out the Government's

conclusions regarding the provision of airports capacity for the South-East. He said that the Government had decided to invite the British Airports Authority to bring forward proposals for the expansion of Stansted airport, that these proposals would be examined at a wide-ranging public inquiry before final decisions were reached, and in a later debate in this House in February 1980 he made it clear that it would be open to objectors to the Stansted proposals to canvas alternative solutions.
One of the local authorities around Stansted, the Uttlesford district council, subsequently submitted a planning application for a fifth terminal on the Perry Oaks site at Heathrow with the support of British Airways. The application was called in by the Secretary of State for the Environment and referred to the Stansted inspector for examination. The result is that concurrent public inquiries are now being held into the Stansted application and ancillary proposals such as road access and compulsory purchase orders, and the planning application for a fifth terminal at Heathrow.
I understand that on current expectations the "Stansted phase" of the inquiries will be completed in the summer. The inquiries will then move to a venue local to Heathrow to hear the case for and against a fifth terminal. The Government's intention is to provide those most affected by the Heathrow proposals with a full and fair opportunity to make their views known to the inspector. The inspector will make recommendations on all the applications before him and the Secretaries of State will reach their decision in the light of his report and all the evidence before him.

Dr. Glyn: Surely this is a complete waste of time. On 23 July 1981, the Government said in answer to my question that they would not allow a fifth terminal. Why must we now go through all this procedure when we know that the Government will not permit a fifth terminal, unless they are going back on their word?

Mr. Sproat: If my hon. Friend will listen to the pitiless logic with which I shall deploy my case, I hope to persuade him of the reason why we are doing what we are.
I cannot, of course, anticipate what these decisions will be. The purpose of the inquiry is to examine all the evidence, which the inspector will weigh in reaching his conclusions. I must stress that the inspector brings an entirely open mind to the issues. He will have the benefit of hearing all the relevant evidence presented and tested in cross-examination. He is free to form his own views on that evidence and to reach his conclusions as he sees fit.
Against this background, I cannot anticipate either the conclusions that the inspector will reach or the decisions that the Government will reach in the light of his report. All I can do at this stage—I hope this will gratify and satisfy my hon. Friends—is to refer them to the views the Government had formed on the provision of a fifth terminal before the current inquiries had opened and which have been restated on a number of occasions since December 1979.
In the airports policy debate in another place, Lord Trefgarne said:
We have carefully considered this option but have come to the conclusion that a fifth terminal at Heathrow would strain the ground facilities, and would impose a significant extra noise burden on an area which already suffers heavily—1½ million people are currently affected by significant levels of aircraft noise around Heathrow. Moreover, it would take perhaps 11 to 13 years to build, bearing in mind the need to relocate the Perry Oaks sewage works and drain the land before construction, and


its use would be constrained by runway capacity (bearing in mind, in particular, the limit of 275,000 air transport movements, which will apply when the fourth terminal is in operation) and it would not provide a long term solution".—[Official Report, House of Lords, 14 February 1980; Vol. 405, c. 327.]
In the airports policy debate in this House on 21 February 1980 my right hon. Friend the then Secretary of State restated the reasons that had led the Government to conclude that a fifth terminal should not be provided. He confirmed that the public inquiry into the Stansted proposals would be wide-ranging and could consider the case for a fifth terminal, but added:
I have made clear the Government's position. We do not favour a fifth terminal, and that is also the view of the inspector."—[Official Report, 21 February 1980; Vol. 979, c. 694.]
In response to a question from my hon. Friend the Member for Richmond, Surrey (Sir A. Royle) on 3 November 1980, my right hon. Friend the then Under-Secretary of State for Trade said:
The Government's view remains as set out in the statement made on 17 December 1979 by my right hon. Friend the Secretary of State, that a fifth terminal should not be provided. "—[Official Report, 3 November 1980; Vol. 991, c. 411.]
On 13 November 1980, my right hon. Friend the then Under-Secretary again confirmed the Government's view on a fifth terminal in a letter to my hon. Friend the Member for Twickenham. This letter was then issued as a press release by my Department.
In his reply to a Parliamentary Question on 13 May 1981, my right hon. Friend the Secretary of State referred to the fact that the proposed 275,000 limit on the number of air transport movements at Heathrow which will be introduced when the fourth terminal opens at Heathrow will require a further increase in the average number of passengers per air transport movement at Heathrow if the additional capacity provided by that terminal is to be fully utilised, as well as the continuation of the present restrictions on new airline operators and the ban on whole-plane charters at Heathrow. The statement also made it clear that the Government had not ruled out the possibility of using their powers to transfer services at present operated at Heathrow to another airport should the need arise.
In reply to a question on 23 July 1981, my hon. Friend the Under-Secretary of State for Trade said:
The Government have stated their view on a number of occasions that a fifth terminal at Heathrow should not be provided."—[Official Report, 23 July 1981; Vol. 9, c. 195.]
In a letter to my hon. Friend the Member for Twickenham, dated 4 August 1981, my right hon. Friend set out the position regarding the public inquiry, reiterated the Government's statements on a fifth terminal at Heathrow, and said that a statement on this matter had been submitted to the inspector.
Finally, I should like to refer to the letter of my right hon. Friend the Prime Minister of 19 October 1981 to my hon. Friend the Member for Saffron Walden (Mr.

Haselhurst), in which she referred to a statement made by counsel acting on behalf of Government Departments at the inquiries, and said:
The Government's airports policy was announced by John Nott in the House of Commons on 17 December 1979 and has been repeated since. Nevertheless, the Inspector was concerned that people should be aware at the outset of the Inquiry where the Government stood and indeed this is essential if participants are to make their case effectively. If they support the Heathrow or the Maplin proposals it will be for them to indicate why such an alternative should be pursued notwithstanding the reasons given in December 1979 for rejecting them. In effect it will be for them to show why Government policy should be modified.
A copy of this letter has been placed before the inspector as an inquiry document.
Therefore, my hon. Friends can be in no doubt about the Government's present airports policy, and can be assured that the inspector is also well aware of that policy.

Mr. Jessel: Would it then be fair to say that my hon. Friend has made quite clear the Government's views against having a fifth terminal at Heathrow, but that, as an application for planning permission was put in by the Uttlesford district council in Essex, that application must be dealt with, like other planning applications, either by the local planning authority or by a public inquiry, as in this case? Is he saying that the fact that the planning application must be dealt with has no implications as to the position that the Government took from the start, because airport siting considerations—that is, where one has an airport—go beyond questions of mere planning permission, with which the public inquiry has to deal?

Mr. Sproat: I am grateful to my hon. Friend for those remarks. The inspector is, of course, fully aware of the Government's views; they have been set out time and again and I have also reiterated them this evening.
In conclusion, I must stress that there can be no question of the Government seeking to fetter in any way the inspector's independent judgment or treating any particular proposal as out of the question simply because it conflicts with Government policy as put to the inquiry. The inspector must be entirely free to form his own conclusions on the basis of the evidence placed before him and submit whatever recommendations he thinks fit to my right hon. Friends. They will reach a final decision on this difficult issue only when they have carefully considered his report.
I hope that the constituents of my hon. Friend truly appreciate the hard work that he does. Nobody could have a Member of Parliament who does more for them on this issue.

Question put and agreed to.

Adjourned accordingly at Twelve o'clock.

Mr. Speaker's Ruling (Disorder in Committees)

The following Private Ruling given by Mr. Speaker is published in accordance with Mr. Speaker's statement of 5 November 1981—[Official Report, c. 113.]

Following a recent disturbance by strangers at a meeting of a Select Committee, I have been asked to rule whether the power granted to the Serjeant at Arms, under Standing Order No. 113, to take into his custody any stranger who, having been admitted into the gallery of the House, misconducts himself or does not withdraw when

ordered to do so, extends equally to strangers so misconducting themselves at meetings of Select and Standing Committees sitting within the precincts.

The terms of the Standing Order are applied specifically to Committees of the whole House, as well as the House itself, and I am confident that the House would not wish its other Committees to be denied this protection. I therefore rule that the power conferred upon the Serjeant at Arms by Standing Order No. 113 may, if the Chairman so directs, be exercised in respect of strangers present at sittings of Select and Standing Committees within the precincts.